Buchanan v Beacon City School Dist.

[*1] Buchanan v Beacon City School Dist. 2010 NY Slip Op 52448(U) Decided on January 28, 2010 Supreme Court, Dutchess County Sproat, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 28, 2010
Supreme Court, Dutchess County

James Buchanan, Plaintiff,

against

Beacon City School District, Dr. FERN AEFSKY, Superintendent of Beacon City School District, Individually, LEE MARTUCCI, Supervisor of Transportation, Beacon City School District, Individually, ANN MARIE QUARTIRONI, Individually, Defendants.



5142/2009



JONATHAN M. VICTOR, ESQ.

Patricia Finn, P.C.

Attorney for Plaintiff

450 Piermont Avenue

Piermont, NY 10968

JULIE A. RIVERA, ESQ.

Rutherford & Christie, LLP

Attorneys for Defendants

369 Lexington Avenue, 8th Floor

New York, NY 10017

Christine A. Sproat, J.

Defendants move for an order:

a.Pursuant to CPLR §3211(a)(5) dismissing any and all causes of action of defamation, based upon the expiration of the Statute of Limitations;

b.Pursuant to CPLR §3211(a)(2) dismissing any and all causes of action for negligence, including negligent infliction of emotional distress, as such a claim is barred by the Workers' Compensation Law; and

c.Pursuant to CPLR §3211(a)(7) dismissing all other claims for plaintiff's failure to state a cause of action for wrongful termination and implied breach of an employment contract. [*2]

Plaintiff moves for an order:

a.Permitting plaintiff to file an amended late notice of claim as to the allegations that comprised the October 2007 police report, which would be amended to include police reports in response to defendants' calls throughout September and October 2008; and

b.Pursuant to CPLR 3025 permitting plaintiff to file an amended complaint that includes defendants' allegations that comprised the September and October 2008 police reports.

The following submissions were read:

Notice of Motion - Affirmation of Julie A. Rivera, Esq. -1-3

Annexed Exhibits

Defendants' Memorandum of Law4

Notice of Motion - Affirmation of Jonathan M. Victor, Esq. -5-8

Annexed Exhibits

Julie A. Rivera, Esq.'s Affirmation in Opposition - Annexed Exhibits9-10

Reply of Julie A. Rivera, Esq.11

Reply Affirmation of Patricia Finn, Esq. - Annexed Exhibits12-13

Upon the foregoing papers it is hereby ORDERED that the defendants' motion dismissing plaintiff's complaint against them is granted and plaintiff's motion to file a late notice of claim and amended complaint is denied.

Plaintiff, a former employee of defendant Beacon City School District, brings the instant action for slander, libel, failure to supervise, wrongful termination, and breach of implied employment contract. The plaintiff was employed as a probationary school bus driver for defendant School District from September, 2007 until October, 2007. Plaintiff was terminated on October 31, 2007, the month after he was hired. The plaintiff had picked up a female student in his personal vehicle and had brought her to school in his personal vehicle instead of with a school district vehicle. The plaintiff, a probationary employee, was immediately terminated. The instant action ensued.

A review of the plaintiff's July 13, 2009 amended verified complaint reveals that the causes of action for slander and libel relate to events which allegedly occurred in November, 2007.

Pursuant to CPLR 215(3), an action to recover damages for slander or libel must be commenced within one year. It is undisputed that the alleged defamatory statements were uttered more than one year prior to the commencement of the instant action. Accordingly, plaintiff's causes of action for slander and libel are barred by the statute of limitations. The Court also notes that plaintiff failed to comply with CPLR 3016(a) in that the particular words allegedly [*3]uttered by defendants were not set forth in the plaintiff's complaint. In addition, plaintiff's causes of action for inadequate supervision and negligence are barred by the Workers' Compensation Law. Further, plaintiff's claims for wrongful termination and breach of implied employment contract fail to set forth a valid cause of action. It is undisputed that at the time the plaintiff was terminated he was an at-will probationary employee.

With respect to plaintiff's motion for an order permitting him to serve and file a late notice of claim and a second amended complaint, such motion must be denied. "In determining whether to grant an application for leave to serve a late notice of claim, a court should consider, inter alia (1) whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, (2) whether the claimant is an infant or physically or mentally incapacitated, (3) whether the claimant demonstrated a reasonable excuse for the delay in serving a notice of claim, and (4) whether the delay would substantially prejudice the municipality in maintaining its defense on the merits (see General Municipal Law §50-e[5])." (Matter of Julie F. v. City of New York, 50 AD3d 794 (2nd Dept., 2008) citing Matter of Narcisse v. Incorporated Vil. of Central Islip, 36 AD3d 920; Nardi v. County of Westchester, 18 AD3d 521, 522; Matter of Corvera v. Nassau County Health Care Corp., 38 AD3d 775, 776.) In the instant matter the plaintiff is not an infant or physically or mentally incapacitated. Further, "the [plaintiff] failed to offer a reasonable excuse for failing to serve a timely notice of claim or for the delay in moving for leave to serve a late notice of claim." (Matter of Julie F. v. City of New York, 50 AD3d 794 (2nd Dept., 2008).) In addition, the plaintiff "did not establish that the [Beacon City School District] had knowledge of the essential facts underlying the claim . . . . Knowledge of the incident alone, without more, is insufficient." (Id. citing Weber v. County of Suffolk, 208 AD2d 527, 528.)

Finally, while "the merits of the claim ordinarily are not considered on a motion for leave to serve a late notice of claim, where the proposed claim is patently without merit, leave to serve a late notice of claim should be denied." (Matter of Besedina v. New York City Transit Authority, 47 AD3d 924 (2nd Dept., 2008) citing Matter of Catherine G. v. County of Essex, 3 NY3d 175, 179, 785 NYS2d 369, 818 NE2d 1110; see also Matter of State Farm Fire & Cas. Co. v. Village of Bronxville, 24 AD3d 453, 805 NYS2d 651; Matter of Brown v. New York City Hous. Auth., 39 AD3d 744, 834 NYS2d 279.)

Accordingly, for all of the foregoing reasons, the defendants' motion must be granted and the plaintiff's motion must be denied. (See, also, Matter of Roberto v. Town of Hempstead, 48 AD3d 691 (2nd Dept., 2008); Matter of Portnov v. City of Glen Cove, 50 AD3d 1041 (2nd Dept., 2008).)

So Ordered.

Dated: January 28, 2010 Poughkeepsie, New York

_______________________________HON. CHRISTINE A. SPROAT

Supreme Court Justice