Doe v North Tonawanda Cent. School Dist. |
2012 NY Slip Op 00553 [91 AD3d 1283] |
January 31, 2012 |
Appellate Division, Fourth Department |
Published by New York State Law Reporting Bureau
pursuant to Judiciary Law ยง 431. |
As corrected through Wednesday, February 29, 2012 |
Jane Doe, Respondent, v North Tonawanda Central School
District, Appellant. |
Hodgson Russ LLP, Buffalo (Julia M. Hilliker of counsel), for respondent-appellant.
O'BrienBoyd, P.C., Williamsville (Christopher J. O'Brien of counsel), for
claimant-respondent.
Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.),
entered June 30, 2011. The order denied the motion of respondent for leave to renew the
application of claimant for leave to serve a late notice of claim.
It is hereby ordered that the order so appealed from is unanimously affirmed without
costs.
Memorandum: On a prior appeal, we held that Supreme Court did not abuse its discretion
in granting claimant's application for leave to serve a late notice of claim based on allegations
that one of respondent's teachers had sexually abused her when she was a student at respondent's
elementary school (Doe v North Tonawanda Cent. School Dist., 88 AD3d 1289 [2011]).
Respondent now appeals from an order denying its motion for leave to renew claimant's
application for leave to serve a late notice of claim. The court properly denied the motion. A
motion for leave to renew "shall be based upon new facts not offered on the prior [application]
that would change the prior determination" (CPLR 2221 [e] [2]), and "shall contain reasonable
justification for the failure to present such facts on the prior [application]" (CPLR 2221 [e] [3]).
Although we agree with respondent that certain information obtained during claimant's
examination pursuant to General Municipal Law 50-h constitutes new evidence that respondent
could not have submitted in opposition to the prior application, we conclude that the new
evidence would not have changed the prior determination (see Davidoff v East 13th St. Tifereth
Place, LLC, 84 AD3d 1302, 1303 [2011]; Garcea v Battista, 53 AD3d 1068, 1070 [2008]; Webb
v Torrington Indus., Inc., 28 AD3d 1216, 1217 [2006]). Present Scudder, P.J., Smith, Centra,
Lindley and Gorski, JJ.