Gabriel v. New York City Department of Education

Appellate Division of the Supreme Court of New York

Gabriel v. New York City Department of Education

118 A.D.3d 450, 987 N.Y.S.2d 344

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 5, 2014

StatusPublished

This text of 118 A.D.3d 450 (Gabriel v. New York City Department of Education) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gabriel v. New York City Department of Education, 118 A.D.3d 450, 987 N.Y.S.2d 344 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme Court, New York County (Donna M. Mills, J.), entered November 14, 2012, which denied petitioner’s motion to renew respondent’s motion to dismiss the petition, unanimously affirmed, without costs.

Much of the evidence that petitioner submitted on her motion to renew had been submitted by her in support of the petition and therefore was not “new” (CFLR 2221 [e] [2]; see Melcher v Apollo Med. Fund Mgt. L.L.C., 105 AD3d 15, 23 [1st Dept 2013]). Insofar as any of the evidence was new but could have been presented in opposition to respondent’s motion to dismiss, petitioner offered no justification for the failure to present the evidence on the prior motion (CFLR 2221 [e] [3]). Insofar as any of the evidence was new and previously unavailable, the evidence would not have changed the prior determination (CFLR 2221 [e] [2]), which denied the petition and dismissed the proceeding as barred by petitioner’s conceded failure to file a timely notice of claim (Education Law § 3813 [1]) and by the statute of limitations (CFLR 217 [1]).

Concur — Mazzarelli, J.E, Moskowitz, DeGrasse, Manzanet-Daniels and Kapnick, JJ.

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Order, Supreme Court, New York County (Donna M. Mills, J.), entered November 14, 2012, which denied petitioner’s motion to renew respondent’s motion to dismiss the petition, unanimously affirmed, without costs.

Much of the evidence that petitioner submitted on her motion to renew had been submitted by her in support of the petition and therefore was not “new” (CFLR 2221 [e] [2]; see Melcher v Apollo Med. Fund Mgt. L.L.C., 105 AD3d 15, 23 [1st Dept 2013]). Insofar as any of the evidence was new but could have been presented in opposition to respondent’s motion to dismiss, petitioner offered no justification for the failure to present the evidence on the prior motion (CFLR 2221 [e] [3]). Insofar as any of the evidence was new and previously unavailable, the evidence would not have changed the prior determination (CFLR 2221 [e] [2]), which denied the petition and dismissed the proceeding as barred by petitioner’s conceded failure to file a timely notice of claim (Education Law § 3813 [1]) and by the statute of limitations (CFLR 217 [1]).

Concur — Mazzarelli, J.E, Moskowitz, DeGrasse, Manzanet-Daniels and Kapnick, JJ.

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Bluebook (online)

118 A.D.3d 450, 987 N.Y.S.2d 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gabriel-v-new-york-city-department-of-education-nyappdiv-2014.

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