W v City of New York[*1] W v City of New York 2009 NY Slip Op 51606(U) [24 Misc 3d 1224(A)] Decided on July 21, 2009 Supreme Court, Kings County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on July 21, 2009
Supreme Court, Kings County
P W, Plaintiff,
The City of New York, The New York City Department of Education and the United Federation of Teachers, Defendants.
The plaintiff is represented by the Law Offices of Vivk Suri, by Abraham W, Esq., of counsel, the defendants the City of New York and the City Department of Education are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Danielle J. Barrett Esq. of counsel, the defendant the United Federation of Teachers is represented by the Law Offices of James R. Sander, Esq., by Yvonne M. Mariette, Esq., of counsel.
Robert J. Miller, J.
Footnote 1:The City defendants, in their memorandum of law, also seek to dismiss plaintiff's complaint based upon the grounds that plaintiff has failed to comply with the notice of claim requirement of Education Law § 3813 (1), that plaintiff's negligence claim is barred by the applicable Statute of Limitations, that plaintiff fails to state a cognizable 42 USC § 1983 claim, and that plaintiff failed to file a timely CPLR article 78 proceeding to challenge the decisions that were the subject of this action.
Footnote 2:Since, after the UFT served its notice of cross motion, plaintiff served the UFT with her complaint on November 26, 2008, the UFT seeks, by its cross motion, to dismiss plaintiff's complaint as untimely served and based upon its failure to state a viable cause of action against it.
Footnote 3: Plaintiff has not submitted a copy of the grievance form to the court.
Footnote 4:Plaintiff's opposition papers are dated December 26, 2008, two days after the expiration of plaintiff's time to submit her opposition papers. Additionally, the City defendants and the UFT did not receive them until January 13, 2009, three weeks after they were due for filing with the court. Plaintiff's opposition papers provide no explanation for this untimely service.