Wagman v. Hooper

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Putnam County (Lubell, J.), dated May 7, 2015, which denied her motion for summary judgment dismissing the complaint and granted the plaintiffs’ cross motion to amend the complaint.

Ordered that the order is reversed, on the law, with costs, the defendant’s motion for summary judgment dismissing the complaint is granted, and the plaintiffs’ cross motion to amend the complaint is denied.

The plaintiff David Wagman was injured when he was struck by a vehicle operated by the defendant and owned by the Elmsford Union Free School District (hereinafter the school district). It is undisputed that at the time of the accident, the defendant was employed by the school district and was performing her work duties and acting within the scope of her

The defendant’ demonstrated her prima facie entitlement to judgment as a matter of law by establishing that she was operating the school district’s vehicle within the scope of her employment and in the performance of her work duties for the school district. As such, the school district was obligated to indemnify her for any adverse judgment in this action pursuant to the clear language of General Municipal Law § 50-b (1) and Education Law § 3023. Accordingly, the school district, although not a named defendant, was the real party in interest in this action, and the plaintiffs were required to timely serve a notice of claim upon the school district pursuant to General Municipal Law § 50-e (1) (b) as a condition precedent to commencing and maintaining this action against the defendant (see generally Thygesen v North Bailey Volunteer Fire Co., Inc., 106 AD3d 1458 [2013]; Ruggiero v Phillips, 292 AD2d 41 [2002]; Matter of Schmidt v Board of Coop. Educ. Servs. of Nassau County, 253 AD2d 433 [1998]; Kerch v Silvestri, 186 AD2d 322 [1992]).

The plaintiffs failed to raise a triable issue of fact in opposition to the defendant’s motion. Although they sought leave to amend their complaint to allege that the defendant was not a permissive user of the subject vehicle within the meaning of Vehicle and Traffic Law § 388 due to her license suspension (but see Bernard v Mumuni, 22 AD3d 186 [2005], affd 6 NY3d 881 [2006]; Brindley v Krizsan, 18 AD2d 971 [1962], affd 13 NY2d 976 [1963]), neither that statute nor the defendant’s license suspension affect the school district’s obligation to indemnify the defendant pursuant to General Municipal Law § 50-b (1) and Education Law § 3023 under the circumstances

Eng, P.J., Mastro, Leventhal and Miller, JJ., concur.