Kmiotek v. Sachem Cent. Sch. Dist.

176 A.D.3d 1063

111 N.Y.S.3d 322

In the Matter of Joseph KMIOTEK, etc., et al., Petitioners-Respondents,

v.SACHEM CENTRAL SCHOOL DISTRICT, Appellant, et al., Respondent.

2018–14804

Index No. 611204/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—May 20, 2019

October 23, 2019

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y., (Christine Gasser of counsel), for appellant.

Law Offices of Kenneth M. Mollins, P.C., Hauppauge, N.Y., (Timothy Manning of counsel), for petitioners-respondents.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the Sachem Central School District appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated November 30, 2018. The order, insofar as appealed from, granted that branch of the petition which was to deem a late notice of claim timely served nunc pro tunc upon the Sachem Central School District.

ORDERED that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, and that branch of the petition which was to deem a late notice of claim timely served nunc pro tunc upon the Sachem Central School District is denied.

On August 10, 2017, at the athletic facility of Sachem High School East located in Farmingville, five members of the high school football team were engaged in a strength conditioning drill carrying a heavy, large log or pole above their heads or on their shoulders. The three infant children of the petitioners were among the five team members participating in the drill. During the drill, a different team member (hereinafter the decedent) was severely injured when the log or pole became unstable and dropped. The decedent died as a result of his injuries.

Approximately 10 months later, in June 2018, the petitioners, as the parents and lawful guardians of their infant children, commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc upon the Sachem Central School District (hereinafter the District) and another respondent, alleging intentional and negligent infliction of emotional distress. The petition alleged that the petitioners' children were all in the zone of danger at the time of the accident, and that they had suffered emotional trauma as a result of witnessing the incident. Additionally, the petition alleged that the District initially provided mental health care and counseling services to all students affected by the incident. The record indicates that the Long Island Trauma Recovery Network provided volunteer transitional services, including holding a group session for the students on the team and offering two individual counseling sessions for any student who so desired. The petition alleged that the District later cancelled any and all counseling sessions. The petition alleged, among other things, that the petitioners' children had suffered emotional distress as a result of the District's refusal to provide additional counseling services, and by its removal of several coaches from the football team who served as the children's only remaining support system.

The District opposed the petition, arguing that the proposed claim was patently meritless, inasmuch as recovery for emotional distress by a bystander who is witness to the serious injury or death of another was limited to members of the immediate family of that person. Additionally, the District contended that it had no authority or obligation to pay for mental health care services in addition to the services which had been provided by it. The District submitted affidavits from its Superintendent of Schools (hereinafter the superintendent) and the principal of the high school, detailing the mental health care services that the District had provided to students following the accident, including the ongoing provision of counseling from mental health professionals employed by the District. The superintendent also noted that the football coaches were reappointed on a yearly basis, and that while two of the coaches were not reappointed, both were still employed by the District and available to support the players.

In the order appealed from, the Supreme Court, among other things, granted that branch of the petition which was to deem the late notice of claim timely served nunc pro tunc upon the District. The District appeals.

Pursuant to General Municipal Law § 50–e (5), the court, in its discretion, may extend the time to serve a notice of claim (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 465, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; Ballantine v. Pine Plains Hose Co., Inc., 166 A.D.3d 718, 719, 87 N.Y.S.3d 245 ). "The purpose of the notice of claim is to provide municipalities and school districts timely...