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Santostefano v. Middle Country Central School District

Supreme Court of New York, Second Department

December 27, 2017

Guy Santostefano, appellant,
v.
Middle Country Central School District, et al., respondents.

         D54235 G/hu

          Submitted - November 27, 2017

          Scott Michael Mishkin, P.C., Islandia, NY(KyleT. Pulis of counsel), for appellant.

          Law Offices of Thomas M. Volz, PLLC, Nesconset, NY (Michael G. Vigliotta and Anthony S. DeLuca of counsel), for respondents.

          CHERYL E. CHAMBERS, J.P. SHERI S. ROMAN ROBERT J. MILLER COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         In an action to vacate a settlement agreement, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Garguilo, J.), dated August 22, 2016, which granted the defendants' motion pursuant to CPLR3211(a) to dismiss the complaint and denied his cross motion pursuant to CPLR 3025(b) for leave to amend the complaint.

         ORDERED that the order is affirmed, with costs.

         The plaintiff was employed as a teacher with in the defendant Middle Country Central School District (hereinafter the District). In May 2015, disciplinary charges were filed against the plaintiff pursuant to Education Law § 3020-a. On August 6, 2015, the plaintiff entered into a settlement agreement with the District resolving the charges. Pursuant to the terms of the settlement agreement, the plaintiff resigned from the District effective August 6, 2015, and the District withdrew the charges.

         In January 2016, the plaintiff commenced this action to vacate the settlement agreement, alleging, in effect, that the terms of the settlement agreement permitting the District to disclose to the plaintiffs prospective employers that the plaintiff was brought up on disciplinary charges had caused harm to the plaintiffs career. The plaintiff also alleged, among other things, that he was fraudulently induced into executing the settlement agreement. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint, inter alia, based upon the plaintiffs failure to timely serve a notice of claim, based upon documentary evidence, and for failure to state a cause of action. The plaintiff cross-moved pursuant to CPLR 3025(b) for leave to amend the complaint. In the order appealed from, the Supreme Court granted the defendants' motion and denied the plaintiffs cross motion. The plaintiff appeals.

         "In general, the service of a timely notice of claim pursuant to Education Law § 3813(1) is a condition precedent to the commencement of an action or proceeding against a school district, and failure to comply with this requirement is a fatal defect'' (Matter of Baumann & Sons Buses, Inc. v Ossining Union Free Sch. Dist., 121 A.D.3d 1110, 1111; see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 N.Y.2d 539, 547; School Aid Specialists, LLC v Board of Educ. of Warwick Val. Cent. Sch. Dist., 130 A.D.3d 1006). "Although the notice of claim requirement does not apply when a litigant seeks only equitable relief, or commences a proceeding to vindicate a public interest" (Matter of McGovernv Mount Pleasant Cent. Sch. Dist., 114 A.D.3d 795, 795 [citation omitted], affd 25 N.Y.3d 1051), here, the plaintiff sought to vindicate a private right (see Matter of O Connor v Board of Educ. of Greenburgh-Graham Union Free School Dist., 11 A.D.3d 616, 617; Sangermano v Board of Coop. Educ. Servs. of Nassau County, 290 A.D.2d 498, 498; Matter of Stevens v Board of Educ. of McGraw Cent. School Dist., 261 A.D.2d 698, 699; Dodson v Board of Educ. Of the Valley Stream Union Free School Dist., 44 F.Supp.3d 240, 249 [ED NY]). Accordingly, since the plaintiff failed to serve a notice of claim, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint based upon the plaintiffs failure to timely serve a notice of claim.

         Furthermore, the Supreme Court also properly granted that branch of the defendants' motion which was pursuant to CPLR3211(a)(1) to dismiss the complaint. "To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiffs factual allegations, conclusively establishing a defense as a matter of law" (Gould v Decolator, 121 A.D.3d 845, 847; see Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d, 314, 326; Burgos v New York Presbyt. Hosp., 155 A.D.3d 598). Here, the settlement agreement utterly refuted the plaintiffs factual allegations and conclusively established a defense to the complaint as a matter of law. Contrary to the plaintiffs contention, the settlement agreement conclusively established a defense to the allegations that he was fraudulently induced into entering into the settlement agreement by the defendants' oral representations, as those allegations were barred by the specific disclaimer provisions contained in the settlement agreement (see Danann Realty Corp. v Harris, 5 N.Y.2d 317, 320-321; Yellow Book Sales & Distrib. Co., Inc. v Hillside Van Lines, Inc., 98 A.D.3d 663, 664; DiBuono v Abbey, LLC, 95 A.D.3d 1062, 1064-1065).

         ''Although leave to amend should be freely given in the absence of prejudice or surprise to the opposing party (see CPLR 3025[b]), the motion should be denied where the proposed amendment is p alp ably insufficient or patently devoid of merit" (J.W.Mays, Inc. v Liberty Mut. Ins. Co., 153 A.D.3d 1386, 1387; see Skywest, Inc. v Ground Handling, Inc., 150 A.D.3d 922, 924). "Whether to grant such leave is within the motion court's discretion, the exercise of which will not be lightly disturbed" (Pergament v Roach, 41 A.D.3d 569, 572). Here, the Supreme Court providently exercised its discretion in denying the plaintiff's cross motion pursuant to CPLR 3025(b) for leave to amend the complaint, as the proposed amendments were palpably insufficient or patently devoid of merit.

         In light of our determination, we need not reach the ...


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