Jacobs v Mostow

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Jacobs v Mostow 2012 NY Slip Op 30369(U) January 18, 2012 Supreme Court, Nassau County Docket Number: 4162/01 Judge: F. Dana Winslow Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice TRIALIIAS, PART 3 NASSAU COUNTY DAVID B. JACOBS, Plaintiff, MOTION SEQ. NO. : 005, 006 MOTION DATE: 10/25/11 -against- MICHAEL H. MOSTOW, ROOSEVELT UNION FREE SCHOOL DISTRICT, BOAR OF EDUCATION OF THE ROOSEVELT UNION FREE SCHOOL DISTRICT GLENN SIMMONS, MARK DAVIS, MARSHA BEDARD, STEPHEN BUDHU, RODNEY ROMAIN, STEVEN A. FAYER, M. HOSSEIN ZAMNI, CAROLYN GEAR, CAROLYN RUFFIN, HORACE WILLIAMS, INDEX NO. : 4162/01 Defendants. The following papers having been read on the motion (numbered 1-5): Notice of Motion Seq. No. : 005............................................................ Affrma ti on in Op pos iti 0 n Affdavit in Support of Plaintiffs Motion....................................... Notice of Cross Motion Seq. No. : 006.................................................. Affirmation in Op positi 0 D. ... ......... Motion (seq. no. 5) by the plaintiff for an order pursuant to CPLR 15015(a)(4), under Jacobs V Mostow , et al. incorporating the causes of action in the complaint entitled Supreme Court, Nassau County Index No. 7715/07 with this action and consolidating both; amending the caption to add those paries not named to date that appear in the 7715/07 action vacating the prior orders , decisions , and judgment pursuant to CPLR 5015(a)(4); and granting summary judgment to the plaintiff is determined as hereinafter Cross-motion (seq. no. 6) by the attorney for the defendants Michael H. Mostow , Roosevelt Union Free School Distrct , Board of Education of The Roosevelt Union Free School District , Glenn Simmons , Mark Davis , Marsha Bedard, Stephen Budhu , Rodney Romain , Hossein Zamani, Carolyn Gear, Carolyn Ruffin and Horace 3211(a)(5) dismissing the complait or, in the Willams for an order alternative, for summary judgment pursuant to CPLR 13212 imposing sanctions on set fort. pursuant to CPLR [* 2] plaintiff for his frivolous conduct and barring plaintiff from bringing any fuer legal proceeding which relate in any way to his employment with the Roosevelt Union Free School Distrct is determined as hereinafter set fort. At the outset, the Cour notes that the plaintiff is withdrawing his claims against Arthur Riegel , Jaspan Schlesinger Hoffman , LLP , Lawrence Tenenbaum , Steven A. Fayer, M. , Randall Solomn , New York State United Teachers , Richard Shane and Neil Dudich. (Plaintiffs Affidavit in Support sworn to July 22 2011 , pg. 2). ~5015(a)(4) does not provide authority for the relief requested by the ~5015(a)(4) states that: CPLR CPLR plaintiff. The court which rendered ajudgment or order may relieve a party from it upon such terms as may be just on motion of any interested person with such notice as the court may direct, upon the ground of: (4) lack of jurisdiction to render the judgment or order (emphasis added). ~5015(a)(4) must be made to the court Gudge) that Siegel New York Practice Fift Edition 9 426, pg. 750. Notwithstanding anything to the contrar, there is nothing in the action bearing Nassau County Supreme Court Index No. 7715/07 or the Federal action to demonstrate that the The motion pursuant to rendered it. CPLR See. cours did not have jurisdiction to do so as contemplated by CPLR t5015(a)( 4). See Lack 41 NY2d 71. Plaintiff appears to be asking to have all of the claims asserted against all of the nan1ed defendants in the 7715/07 action consolidated into the within 4162/01 action. There is no basis for this request since the 7715/07 action has been dismissed on the ~601 and See merits. Consolidation requires ~602. Since all aspects of the 7715/07 action were dismissed, there is nothing left to consolidate with this action (under no. 4162/01). The application for consolidation is denied. The Court wil next address the defendants cross-motion for summar judgment to dismiss the complaint in the within action. The first three causes of action concern the decision to suspend the plaintiff from his teaching duties and the subsequent decision by the Board to require him to undergo a psychiatric examination. The plaintiff alleges he was wrongfully suspended and that there was no legitimate basis for the Board to require him to have a psychiatric evaluation. It was reported to Michael Mostow , the Distrct' s Superintendent of Schools at the time , that Mr. Jacobs was fallng asleep during the school day because he was also , Lack there be two pending actions. CPLR CPLR [* 3] staying up late viewing pornography online. That fact was reported to the Board which was concerned about such behavior in light of the plaintiffs relationship with students. As a result, even if it ultimately turned out not to be tre , it was within the Board' authority to remove the plaintiff from the classroom until such time as a determination could be made as to whether it was appropriate for him to remain in the classroom with students. The Board directed plaintiff to undergo a psychiatric examination pursuant 913. As this Cour noted in its June 13 2002 decision, "the 913 is very broad. " Based on the information that had been provided to the Superintendent, the Board had a legitimate basis for requiring plaintiff to undergo the psychiatric evaluation. The evaluation conducted by Dr. Fayer confirmed the District' s concerns that plaintiff should not be permitted to remain in the classroom. While plaintiff believes that there was no basis for reassigning him from the classroom or to require him to undergo a psychiatric examination, the Distrct demonstrated its actions were based on the information it received and was both necessar and appropriate under the circumstances. The District had a legitimate basis for the action it took. showing of entitlement to summary City of New judgment on the First York 49 NY2d 557. The plaintiff has failed to offer any evidentiar proof in admissible form to demonstrate a factual dispute exists requiring a trial on the First, Second and sociated Fur Mfrs., Inc. 46 N2d 163 AD2d 240. Nelkin 206 AD2d 422. The First , Second and Third Causes of Action are dismissed. The Fourt Cause of Action is a medical malpractice claim against Dr. Fayer which claim has been withdrawn by the plaintiff. The Fifth and Sixth Causes of Action seek damages with respect to the plaintiffs personal items consisting of " chemicals, equipment and/or books and teaching materials which he claims were left at the District' s school and were removed and/or discarded. Previously, the plaintiff valued these items at $34 440. (See Exhibit T , Defendant' Notice of Cross-motion , letter from plaintiff to defendants ' attorney dated January 19, 2007). While defendants dispute plaintiffs claim and the value of these items , this is the New York Education Law standard for requiring a psychiatric examination under NYS Education Law prima facie The defendants have made a Zuckerman , Second and Third Causes of Action. Third Causes of Action. Friends of Animals, Inc. 1065. Conclusory statements are insuffcient. Rosenberg, Sufsky Werner only cause of action that is viable. ~3212 granting sumary Defendants judgment against the plaintiff and dismissing the First, Second and Third Causes of Action is granted. Except as to the Fift and Sixth Causes of Action , the Court has considered the plaintiffs remaining arguments and finds them to be without merit. For ' motion for an order pursuant to CPLR [* 4] 3020-a(2)(a) is example jurisdictional" which cannot be waived, but rather may be raised at any stage of the 3020-a(a) are procedural that may be Board of Educ. 46 NY2d 450. A tenured teacher may waive at p. 454- 456. The plaintiff never raised the alleged , the plaintiff is incorrect where he asserts that Education Law proceedings. The requirements of Education Law waived. See, Abramovich See, Abramovich, supra his rights. procedural defect at the 9 3020-a hearing. The applications for sanctions against the plaintiff are denied. Except as to the Fifth and Sixth Causes of Action, the application by the plaintiff for summary judgment against the defendants is denied. issues of conversion and damages to if any, this action must be certified ready for trial. The plaintiff and the attorney for the defendants shall appear in the Par 3 courtroom for a Certification Conference on February 24, 2010 at 9:30 AM. Plaintiff is admonished that should he In order to proceed to a hearing on the personal property, attempt to raise issues already litigated and determined in this and prior Court decisions at the Conference or any other proceeding dealing with the Fift and Sixth Causes of Action , he may be subject to sanctions and the dismissal of the Fifth and Sixth Causes of Action. This constitutes the Order of the Cour. Dared:d/IJ ENT RED Fl=q 0 1 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE

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