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Zee v. Hicksville Union Free School District
Citations: 210 A.D.2d 237; 622 N.Y.S.2d 279; 1994 N.Y. App. Div. LEXIS 12362
Court: Appellate Division of the Supreme Court of the State of New York; December 4, 1994; New York; State Appellate Court
In a legal proceeding related to General Municipal Law 50-e (5) for permission to submit a late notice of claim against the Hicksville Union Free School District, several appeals were filed. The appeals include: (1) an order from Justice Roncallo on December 22, 1992, where he recused himself and directed reassignment of the case; (2) an order on January 19, 1993, vacating all previous rulings by Justice Roncallo and mandating the resubmission of motions to Justice O’Shaughnessy; (3) a January 25, 1993 order by Justice O’Shaughnessy denying the petitioners' request to serve a late notice of claim; (4) a January 26, 1993 order by Justice O’Shaughnessy denying a motion to dismiss a related complaint; and (5) a June 7, 1993 order by Justice Roncallo denying the petitioners’ motion to vacate previous orders and reinstate an earlier order granting their application. The court dismissed the appeal from the January 26 order due to lack of perfection and because the appellants were not aggrieved by it. The appeals from the orders dated December 22, January 19, and January 25 were affirmed, and the Hicksville Union Free School District was awarded costs. The background involves the petitioners, aged 6 and 7 in 1988 and 1989, who allegedly suffered sexual abuse from a bus driver transporting them to St. Ignatius Loyola School. They filed a negligence action in 1991 against the driver, the transportation company, and the School. In February 1992, they sought to serve a late notice of claim against the Hicksville Union Free School District, which provided transportation. Upon discovering multiple similar cases against the bus driver and school district, the petitioners requested reassignment to Justice O’Shaughnessy. Initially assigned to Justice Roncallo, he granted the late notice application on October 20, 1992. Following a motion from the school district for reargument, Justice Roncallo recused himself and referred the case to Justice O’Shaughnessy, who ultimately denied the petitioners' application for the late notice. The petitioners sought to reverse the reassignment and reinstate the initial order, but their motion was treated as a reargument and denied. They subsequently appealed these orders, excluding the October 20 ruling. Justice Roncallo correctly classified the petitioners' March 1993 motion as one for reargument of previous orders, which are not subject to appeal. Consequently, the appeal from the order dated June 7, 1993, is dismissed. Regarding the merits of the other appeals, Justice Roncallo did not err in assigning the case to a Justice overseeing 45 related cases for judicial efficiency. The petitioners experienced an unexcused delay of approximately three years in seeking to serve a late notice of claim, which was unrelated to their infancy. This delay would significantly hinder the respondent's ability to defend against the claim. Therefore, Justice O’Shaughnessy’s decision to deny the application for a late notice of claim was justified and not an abuse of discretion. The court reviewed the petitioners' additional arguments and found them to lack merit.