The following papers numbered 1 to 8 read on this motion

Notice of Motion1 - 2

Notice of Cross-Motion (2)3 - 4

Affirmation in Opposition (2) 5 - 6

Reply Affirmation7

Memorandum of Law8

Defendant, the City of New York (hereinafter "City") moves to dismiss Plaintiffs' complaint in its entirety. Plaintiffs cross-move to amend their compliant. Defendant Temple Beth-El of Rockaway Park (hereinafter "Temple Beth-El") cross-moves for summary judgment, dismissing certain causes of action asserted against it. Plaintiffs cross-move to amend their Complaint to assert additional causes of action.

Plaintiffs bring this action to recover damages for personal injuries allegedly sustained as a result of their continued exposure to allegedly toxic conditions at P.S. Q-256 Annex located at Temple Beth-El, 445 Beach 135th Street, in the County of Queens, City and State of New York.

The City first contends that it is entitled to dismissal on the ground that it is not a proper party to this action. As "the care, custody, and control of all school property is the responsibility of the New York Board of Education, which is a separate and distinct entity from the City . . . the City cannot be held liable for the negligent maintenance of school property" (Goldes v. City of New York, 19 AD3d 448, 448-49 [2d Dept. 2005]; see also Myers v. City of New York, 64 AD3d 546, 547 [2d Dept. 2009]). Nevertheless, the City may be held liable for a dangerous condition on school property which it affirmatively created (See Bleiberg v. City of New York, 43 AD3d 969, 971 [2d Dept. 2007]). The City has failed to even allege that they did not [*2]affirmatively create the condition alleged to have caused plaintiff's injuries and, as such, their motion to dismiss plaintiffs' complaint in its entirety must be denied.

Both the City and co-defendant Temple Beth-El contend that that the claims of Maureen Mehan, Debra Hunt, Laura Maroney, Rosean Whelan, Grace Rotham, Karen McKelvey, Wanda Santiago, Edward Gilmartin, Miriam Galas, Susan Dawo, and Gary Patrylo are barred by the statute of limitations. The statute of limitations for plaintiffs' personal injury claims is one year and ninety days and begins to run on the date when each plaintiff began to suffer the manifestations or symptoms of his or her respective illness (See NY Gen. Mun. ��50-e; NY C.P.L.R. ��214-c; Searle v. City of New Rochelle, 293 AD2d 735, 736 [2d Dept. 2002]; see also Diaz v. City of New York, 26 Misc 3d 1232A [Sup. Ct. Queens Co. 2010]). The date on which plaintiffs discovered the cause of their injury is immaterial (See Searle, 293 AD2d at 736; Diaz, 26 Misc 3d 1232A).

Plaintiffs Maureen Mehan, Debra Hunt, Laura Maroney, Rosean Whelan, Grace Rotham, Karen McKelvey, Wanda Santiago, Miriam Galas, and Suasan Dawo, and Gary Patrylo all testified at their respective 50�h hearings that they experienced symptoms of their illness more than one year and ninety days prior to the date of commencement of this action. As such, their claims are time-barred and their causes of action for personal injuries stemming from their alleged exposure to toxic conditions must be dismissed against all defendants.

Notably, Plaintiffs' counsel, having represented petitioners in the Diaz case is well aware that these claims are time-barred. Plaintiffs' contention that defendants' motion is premature because further discovery is needed on this issue is wholly without merit. This is not a situation in which defendants are in exclusive possession (See, e.g., Drug Guild Distribs. v. 3-9 Drugs, Inc., 277 AD2d 197, 198 [2d Dept. 2000]; cf. Evangelista v. Kambanis, 74 AD3d 1278 [2d Dept. 2010]; 181 S. Franklin Assocs. v. Y & R Assocs., 6 AD3d 594 [2d Dept. 2004]). Indeed, plaintiffs, not defendants, are in the best position to know when they first became aware of the manifestations or symptoms of their illness.

Nevertheless, with respect to infant plaintiff Edward Gilmartin, the statute of limitations is tolled for the period of his infancy and, thus, his claims are not barred by the statute of limitations (See Flores v. County of Nassau, 8 AD3d 377, 378 [2d Dept. 2004]). However, this tolling provision does not extend plaintiff's time to file a Notice of Claim (See id.). As plaintiff Gilmartin's Notice of Claim was filed more than ninety days after he first began to experience the symptoms of his illness, it is untimely (See NY Gen. Mun. ��50-e; NY C.P.L.R. ��214-c). Plaintiff Gilmartin has not sought leave to file a late notice of claim and, as such, his claim must be dismissed against the City.

Both the City and co-defendant Temple Beth-El also contend that the claims of Barbara Burke, Arlene Rosenberg, Catherine White, Walter White Sr., Janet Bavasso, Flora Deluca, Marty Klein, Laurie Klein, Walter White, Jr., Yassine Rimdi, Igbinosa Inerhunwunwa and James Hiller are barred for their failure to sustain an injury. The 50-h testimony submitted by [*3]Defendants establishes that Barbara Burke, Arlene Rosenberg, Walter White Sr., Flora Deluca, Marty Klein, Laura Klein, Walter White Jr., Yassine Rimdi, and James Hiller did not suffer any injury and cannot sustain a cause of action (See Canario v. Gunn, 300 AD2d 332, 333 [2d Dept. 2002]). Contrary to plaintiffs' contention, the Court may properly consider 50-h testimony to consider whether they have a cause action (See Parker-Cherry v. New York City Hous. Auth., 62 AD3d 845, 846 [2d Dept. 2009]; Power v. Manhattan & Bronx Surface Operating Auth., 16 AD3d 655, 655-56 [2d Dept. 2005]). Moreover, to the extent Katrina Inerhunwunwa, mother of Igminosa Inerhunwunwa and the father of James Hiller seek to assert individual derivative claims, those causes of action must be dismissed as well (See, e.g., Shay v. Jenkins, 263 AD2d 475, 476 [2d Dept. 1999]; Vossler v. Amin, 175 AD2d 570, 571 [4th Dept. 1991]).

However, defendants have failed to establish that Janet Bavasso, who testified at her 50-h hearing that she experienced shortness of breath, Igbinosa Inerhunwunwa, whose mother did not testify that her daughter was in good health, that her health did not get worse while attending the school, or that she was not experiencing any condition related to the allegedly toxic conditions at the school, and Catherine S. White, whose 50-h hearing transcript was not submitted, failed to sustain a serious injury as a matter of law.

In addition, as employees at the school, the claims of Catherine S. White and Janet Bavasso are barred by Worker's Compensation (See NY Workers' Comp. � 11; Maropakis v. Stillwell Materials Corp., 38 AD3d 623 [2d Dept. 2007]; Sormani v. Orange County Community College, 240 AD2d 724 [2d Dept. 1997]).

Plaintiffs' contention that their claims for negligent exposure are not barred because the municipality owed plaintiffs' a special duty is completely unsupported and wholly without merit (See generally Burlew v. American Mut. Ins. Co., 63 NY2d 412 [1984]). The special duty rule holds that a government agency is not liable for the negligent performance of a government function unless there existed a special duty owed to the plaintiff, as opposed to a general duty owed to the public at large (See McLean v. City of New York, 12 NY3d 194, 199 [2009]). It is completely separate and unrelated to whether claims are barred under Worker's Compensation and, as such, the Court need not address whether such a duty existed. The only exceptions to the Worker's Compensation bar are if the employer failed to secure workers' compensation or intentionally injured the employee (NY Workers' Comp. � 11).

Moreover, while Plaintiffs contend that Workers' Compensation does not bar them from asserting constitutional violations, Plaintiffs have failed to identify any specific right allegedly violated by the City, and, thus, those causes of action alleging a constitutional violation must be dismissed as well (See Incorporated Village of Ocean Beach v. Maker Water Taxi, Inc., 201 AD2d 704 [2d Dept. 1994]).

Finally, Plaintiffs' motion to amend their Complaint to add a cause of action for a violation of their civil rights is denied as it is facially devoid of any merit (See DeLouise v. S.K.I. Wholesale Beer Corp., 75 AD3d 489, 491 [2d Dept. 2010]; Morton v. Brookhaven Mem'l. Hosp., [*4]32 AD3d 381 [2d Dept. 2006]). Plaintiff has failed to plead any facts to support their allegation that they were discriminated against on the basis of race, color, or national origin in violation of Title VI of the Civil Rights Act of 1964 (See, e.g., Stevenson v. City of New York, 248 AD2d 248 [1st Dept. 1998]; see also DeLouise, 75 AD2d at 491). Moreover, the other statutes plaintiffs allege were violated do not support a private right of action (See generally Lidge v. Niagra Falls Mem'l Med. Ctr., 17 AD3d 1033, 1035 [4th Dept. 2005]).

Accordingly the City's motion to dismiss is granted to the extent that (1) the claims of Maureen Mehan, Debra Hunt, Laura Maroney, Rosean Whelan, Grace Rotham, Karen McKelvey, Wanda Santiago, Edward Gilmartin, Miriam Galas, Susan Dawo, and Gary Patrylo are dismissed against the City as barred by the statute of limitations; (2) the claim of Edward Gilmartin is dismissed for failure to serve a timely notice of claim; (3) the claims of Barbara Burke, Arlene Rosenberg, Catherine White, Walter White Sr., Janet Bavasso, Flora Deluca, Marty Klein, Laurie Klein, Walter White, Jr., Yassine Rimdi, Igbinosa Inerhunwunwa and James Hiller and the derivative claims of Katrina Inerhunwunwa and James Hiller are dismissed against the City for their failure to sustain an injury; (4) the claims of Catherine S. White and Janet Bavasso are dismissed against the City as barred under the workers compensation law; and (5) all causes of action alleging constitutional violations are dismissed against the City. The motion is denied in all other respects.

Temple Beth-El's motion to dismiss is granted to the extent that (1) the claims of Maureen Mehan, Debra Hunt, Laura Maroney, Rosean Whelan, Grace Rotham, Karen McKelvey, Wanda Santiago, Edward Gilmartin, Miriam Galas, Susan Dawo, and Gary Patrylo are dismissed against Temple Beth-El as barred by the statute of limitations and (2) the claims of Barbara Burke, Arlene Rosenberg, Catherine White, Walter White Sr., Janet Bavasso, Flora Deluca, Marty Klein, Laurie Klein, Walter White, Jr., Yassine Rimdi, Igbinosa Inerhunwunwa and James Hiller and the derivative claims of Katrina Inerhunwunwa and James Hiller are dismissed against Temple Beth-El as these plaintiffs have not sustained an injury. Temple Beth-El's motion is denied in all other respects.

Plaintiffs motion to amend is denied in its entirety.

April 18, 2011 ____________________

J.S.C.