Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

CENTRAL SCHOOL DISTRICT NO. 2 TOWN OYSTER BAY v. SAMUEL COHEN (04/17/69)

DISTRICT COURT OF NEW YORK, FIRST DISTRICT, NASSAU COUNTY 1969.NY.41169 <http://www.versuslaw.com>; 302 N.Y.S.2d 398; 60 Misc. 2d 337 April 17, 1969 CENTRAL SCHOOL DISTRICT NO. 2 OF THE TOWN OF OYSTER BAY, PLAINTIFF,v.SAMUEL COHEN, DEFENDANT George C. Pratt for plaintiff. Vladeck, Elias, Frankle, Vladeck & Lewis for defendant. James F. Niehoff, J. Author: Niehoff


James F. Niehoff, J.

Author: Niehoff

 This is an action in which the plaintiff school district seeks to recover from defendant, a former teacher employee of the school district, the sum of $4,775 with interest from July 1, 1966. The gravamen of the complaint is that the defendant was granted a sabbatical leave of absence from the school district pursuant to a written agreement which provided that if he did not return to the service of plaintiff for a full school calendar year following expiration of the leave of absence he would return the full amount of the salary paid to him while on such leave; that defendant failed and refused to return to his employment in plaintiff district as required by the agreement; and that defendant has failed and refused to return to the plaintiff the sum of $4,775 paid to him during the leave of absence period, although the same has been duly demanded.

The motion before the court is one by plaintiff for an order directing that the answer be stricken and summary judgment entered in favor of the plaintiff for the relief demanded in the complaint upon the ground that no defense exists to the cause of action and that the defenses alleged are frivolous and without merit.

More than 40 years ago Judge Cardozo observed that the "object of a motion for summary judgment is to separate what is formal or pretended in denial or averment from what is genuine and substantial, so that only the latter may subject a suitor to the burden of a trial." (Richard v. Credit Suisse, 242 N. Y. 346, 350 [1926].) More recently, the Appellate Division, First Department said: "One of the recognized purposes of summary judgment is to expedite the disposition of civil cases where no issue of material fact is presented to justify a trial. While the courts are cautioned to exercise the power to summarily direct judgment with full recognition that a party with a just claim or valid defense is entitled to his day in court, timidity in exercising the power in favor of a legitimate claim and against an unmerited one, not alone defeats the end of justice in a specific case, but contributes to calendar congestion which, in turn, denies to other suitors their rights to prompt determination of their litigation." (Di Sabato v. Soffes, 9 A.D.2d 297, 299 [1959]).

"Issue-finding, rather than issue-determination, is the key to the procedure." (Esteve v. Abad, 271 App. Div. 725, 727 [1st Dept., 1947]).

For reasons hereinafter set forth the court finds that no triable issue of fact exists in this case.

Plaintiff's motion for summary judgment is supported by an affidavit of the Superintendent of Schools and a number of documents which establish the following facts:

Prior to July 1, 1966, the defendant was employed as a teacher in the plaintiff school district. On or about December 7, 1964, the defendant applied to the plaintiff for a sabbatical leave of absence for one half year. The written application for sabbatical leave submitted and signed by defendant contained the following crucial language: "I specifically agree to return to the service of the district for a full school calendar year following the expiration of leave unless, with the prior approval of the Board of Education, my return is prevented by reasons of health or by circumstances beyond my control. If I do not return, I agree to return to Central School District No. 2 the full amount of salary paid to me while on such leave. I further agree, upon return, to participate in such programs as the District may develop whereby the benefit of my leave may be shared with the students, other staff members, and/or the general community."

The aforesaid application for sabbatical leave was approved by the Board of Education and, on November 22, 1965, defendant was notified in writing that his leave would commence on January 29, 1966.

Thereafter, on April 1, 1966, the Superintendent of Schools of plaintiff school district sent defendant a form letter advising him that he had been recommended for continued employment as a teacher for the school year commencing September 1, 1966, at a salary of $10,600 and defendant was requested to indicate his intention to return to the school district for that year by signing and returning the carbon copy of the form letter. On April 14, 1966, defendant signed and returned the carbon copy of the form letter which indicated his intention to return. Defendant's signature appears immediately after the below quoted language: "I hereby accept the appointment at the base salary indicated and commit myself to professional service as a teacher in the public schools of Central School District No. 2, Syosset, New York, for the 1966-67 school year."

Subsequently, on July 24, 1966, defendant submitted a letter of resignation to the plaintiff school district. Said letter stated that defendant had "just been offered a position as assistant principal in a New York City elementary school" and that "I feel that I cannot ignore this type opportunity to advance in my chosen profession. Therefore, it is with great reluctance that I must tender my resignation as a teacher in the Baylis Elementary School."

On August 9, 1966, the Superintendent of Schools of plaintiff school district acknowledged receipt of defendant's letter of resignation. The letter of acknowledgment also contained the following statement with respect to defendant's obligation to return the amount of pay received while he was on leave: "* * * may I remind you of the provisions of the Sabbatical Leave policy of Central School District No. 2, which requires you to return the full amount of salary paid to you on leave because of your failure to return to Central School District No. 2 for a full school year following your sabbatical leave. Mr. Robert Hertwig will help you work out a convenient repayment plan which may extend over a period of not to exceed one year."

Correspondence then took place between the defendant and various members of the plaintiff school district pertaining to defendant's obligation to repay the salary paid while he was on sabbatical leave. The matter was never resolved.

Nearly eight months after he submitted his letter of resignation and nearly six and one-half months after the commencement of the 1966-1967 school year, to wit, on March 12, 1967, defendant sent the Superintendent of Schools of the plaintiff school district a letter requesting that he be considered for the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.