Oparaji v Hickson

[*1] Oparaji v Hickson 2006 NY Slip Op 50916(U) [12 Misc 3d 127(A)] Decided on May 17, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 17, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2005-1298 Q C.

Maurice Oparaji, Appellant,

against

Robert A. Hickson, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered June 22, 2005. The order granted defendant's motion for summary judgment dismissing the action and denied as moot plaintiff's cross motion to restore the action to the calendar.

Order affirmed without costs.

Plaintiff, a former teacher at Springfield Gardens High School, brought the instant action against defendant, the former principal of Springfield Gardens High School, to recover damages for defendant's breach of the duty of good faith and fair dealing, misrepresentation, fraud, tortious interference with plaintiff's prospective economic earnings, defamation and harassment. Defendant moved for summary judgment dismissing the action on the grounds that plaintiff did not comply with the notice of claim provisions of Education Law § 3813 and General Municipal Law § 50-e, and that plaintiff could not set forth a prima facie case.

Although plaintiff contended that he himself had "timely filed, by mail," on June 21, 2004, a notice of claim with the Office of the Corporation Counsel of the City of New York as well as the Office of the New York City Comptroller, those offices, after a search of their respective books and records, had no record of ever having received a notice of claim filed by or on behalf of plaintiff with respect to the instant claim. Plaintiff did not aver nor did he provide any evidence that he mailed the notice of claim by registered or certified mail, which is the method of mailing required by the statute (see General Municipal Law § 50-e [3] [d]). Furthermore, although plaintiff provided a copy of the purported notice of claim, it was defective in that it was not "sworn to by or on behalf of the claimant" (see General Municipal Law § 50-e [2]). Since plaintiff was unable to demonstrate that he complied with the requirements of [*2]Education Law § 3813 and General Municipal Law § 50-e, dismissal was warranted. In any event, as to the merits of each cause of action, defendant demonstrated his entitlement to judgment as a matter of law. Accordingly, the court below did not err in dismissing the action.

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: May 17, 2006