Submitted - November 27, 2017
Michael Mishkin, P.C., Islandia, NY(KyleT. Pulis of counsel),
Offices of Thomas M. Volz, PLLC, Nesconset, NY (Michael G.
Vigliotta and Anthony S. DeLuca of counsel), for respondents.
E. CHAMBERS, J.P. SHERI S. ROMAN ROBERT J. MILLER COLLEEN D.
DECISION & ORDER
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.
that the order is affirmed, with costs.
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.
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.
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.
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,
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.
light of our determination, we need not reach the