BM&S Partner Dana Marjieh Secures Voluntary Discontinuance

In a recent trip and fall lawsuit brought by a pedestrian against a Bronx charter school, the plaintiff alleged that he tripped and fell on a broken, cracked, and uneven sidewalk adjacent to the charter school, resulting in a broken ankle requiring an open reduction surgery with internal fixation. Plaintiff brought common law negligence claims in two parallel actions against the charter school and other municipal defendants. After preserving all applicable affirmative defenses in their answer on behalf of the charter school, Black Marjieh & Sanford LLP Partner Dana Marjieh learned in discovery that plaintiff had failed to serve a Notice of Claim on the charter school and thus filed a motion to dismiss to secure a voluntary discontinuance of suit.

Plaintiff’s counsel had incorrectly assumed that serving a Notice of Claim on the municipal defendants satisfied plaintiff’s obligations with respect to the charter school pursuant to Education Law Section 3813 and General Municipal Law Section 50, which require a plaintiff to serve a Notice of Claim on public schools within 90 days of the claim’s accrual, plead such service in the complaint, and appear for a statutory hearing/physical examination. As attorneys experienced in representing charter and other schools, Dana argued in her motion that charter schools are “deemed an independent and autonomous public school” for legal purposes pursuant to Education Law Section 2853 and thus must be served a Notice of Claim separate from the one served on the municipal defendants. They further argued that as the Statute of Limitations on personal injury actions against public entities had expired, plaintiff was time-barred from seeking leave to serve a late Notice of Claim on the charter school, which was fatal to his action as held by controlling case law.

As plaintiff’s counsel was still reluctant to agree to a voluntary discontinuance as to the charter school, Dana impressed upon counsel that his claims also failed substantively pursuant to an administrative code, which makes building owners liable for the maintenance of adjacent sidewalks. Because the charter school did not own the building shared with two other schools or have any contractual duties to maintain the sidewalk, it had no legal duty to plaintiff regarding the allegedly defective sidewalk. Accordingly, counsel conceded that his claims against the charter school were fatally flawed, thereby voluntarily discontinuing the action as to the charter school prior to the accrual of significant defense costs and obviating any recovery for an ankle injury requiring surgery.