Opinion
No. 26296/10.
2011-07-11
Alfred Peter DIORIO, Plaintiff, v. OSSINING UNION FREE SCHOOL DISTRICT, Mary E. Fountain, Phyllis Glassman, Baumann & Sons Buses, Inc., William Heitmann, and Carlos Sanchez, Defendants.
LESTER B. ADLER, J.
The following papers numbered 1 to 31 were read on this motion by defendants Baumann & Sons Buses, Inc. and William Heitmann for an order pursuant to CPLR 3211(a)(5) and (7) dismissing the causes of action against Baumann and Heitmann (collectively the Baumann defendants). Defendants Ossining Union Free School District, Mary Fountain, and Phyllis Glassman (collectively the Ossining defendants) move for an order dismissing the cause of action asserted against them for plaintiff's failure to plead prima facie tort in the notice of claim, and pursuant to CPLR 3211(a)(7) dismissing the cause of action for prima facie tort. Plaintiff cross moves for an order pursuant to Education Law 3813(2–a) and General Municipal Law 50–e(5) granting leave to serve a late Notice of Claim. For purposes of this order the motions are being considered together.
+-----------------------------------------------------------------------------+ ¦Notice of Motion–Affirmation of Alan Pearl in Support—Exhibits ¦1–5 ¦ +-----------------------------------------------------------------------+-----¦ ¦Defendants' Memorandum of Law in Support of Motion to Dismiss ¦6 ¦ +-----------------------------------------------------------------------+-----¦ ¦Affidavit in Opposition—Exhibit ¦7–8 ¦ +-----------------------------------------------------------------------+-----¦ ¦Plaintiff's Memorandum of Law ¦9 ¦ +-----------------------------------------------------------------------+-----¦ ¦Affirmation of Alan Pearl in Further Support ¦10 ¦ +-----------------------------------------------------------------------+-----¦ ¦Defendants' Reply Memorandum of Law ¦11 ¦ +-----------------------------------------------------------------------+-----¦ ¦Notice of Motion—Affirmation of David Kwee—Affidavit of Mary ¦12–19¦ ¦Fountain—Exhibits ¦ ¦ +-----------------------------------------------------------------------+-----¦ ¦Memorandum of Law in Support ¦20 ¦ +-----------------------------------------------------------------------+-----¦ ¦Notice of Cross Motion–Plaintiff's Affidavit—Exhibits ¦21–24¦ +-----------------------------------------------------------------------+-----¦ ¦Plaintiff's Memorandum of Law ¦25 ¦ +-----------------------------------------------------------------------+-----¦ ¦Affirmation in Opposition to Plaintiff's Cross Motion ¦26 ¦ +-----------------------------------------------------------------------+-----¦ ¦Reply Affidavit—Exhibits ¦27–30¦ +-----------------------------------------------------------------------+-----¦ ¦Plaintiff's Reply Memorandum of Law in Support ¦31 ¦ +-----------------------------------------------------------------------------+
Upon the foregoing papers, it is ordered that these motions are decided as follows:
This action involves events surrounding plaintiff's disqualification and termination as a bus driver for Baumann & Sons Buses in September 2008. Plaintiff alleges that following his September 4, 2008 interactions with Safety Supervisor Carlos Sanchez, a new employee, both Terminal Manager William Heitmann and Baumann sought to have the Ossining Union Free School District disqualify plaintiff. It is alleged that a September 4, 2008 letter drafted by Sanchez defames plaintiff in that it falsely states that when Sanchez signaled plaintiff to slow down on his way into the garage he threatened Sanchez stating “I don't care who you are next time that you be there I will run you over.” It is alleged that on September 8, 2008 Heitmann sent a defamatory email to Mary Fountain, Supervisor of Transportation for the School District, stating plaintiff “threatened to drive his car over Safety Supervisor Carlos Sanchez, when on Company property, the Safety Officer signaled to slow down.” It is alleged Heitmann's letter states plaintiff engaged in irrational behavior, was yelling and screaming at work, was a threat to the safety of the children, and had a loose wire. Fountain allegedly sent a letter dated September 10, 2008 requesting that Baumann remove plaintiff from service as a bus driver for the School District. It is alleged Baumann, through Heitmann, had the school district disqualify plaintiff, then stated plaintiff had to be terminated because there was no work for him in the single site district. It is alleged Phyllis Glassman is the Superintendent of the School District. In the complaint, plaintiff asserts causes of action for libel, libel per se, and prima facie tort.
Motion to Dismiss by the Baumann Defendants
The Baumann defendants move for an order pursuant to CPLR 3211(a)(5) and (7) dismissing the causes of action against Baumann and Heitmann, arguing the complaint fails to state a cause of action upon which relief can be granted and plaintiff's claims are barred by the doctrines of res judicata and collateral estoppel. Defendants argue the allegations in this matter are identical to those presented in an arbitration plaintiff attended and in a complaint he filed against the same defendants in the United States District Court for the Southern District of New York. The Baumann defendants argue the issues concerning plaintiff's disqualification and termination have been adjudicated by both an Arbitrator and a Federal District Court Judge and plaintiff should be barred from relitigating these issues.
In opposition, plaintiff argues the claims in this matter were not previously litigated and could not have been litigated in the arbitration, where the sole issue was whether there was a violation of the collective bargaining agreement. Plaintiff argues the parties to the instant action, other than Baumann, were not parties to the arbitration, and the Union did not zealously press his claim in the arbitration.
“The doctrine of res judicata operates to preclude reconsideration of claims actually litigated and resolved in a prior proceeding, as well as claims for different relief against the same party which arise out of the same factual grouping or transaction, and which should have or could have been resolved in the prior proceeding” (Ippolito v. TJC Dev., LLC, 83 AD3d 57, 920 N.Y.S.2d 108 [2d Dept 2011] ). Once a claim is brought to final judgment, all other claims between the same parties arising out of the same transaction or series of transactions are barred, even if based on a different legal theory or seeking a different remedy (Ippolito v. TJC Dev., LLC, 83 AD3d 57, 920 N.Y.S.2d 108 [2d Dept 2011]; Employers' Fire Insurance Company v. Brookner, 47 AD3d 754, 850 N.Y.S.2d 554 [2d Dept 2008] ).
“The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling” (Ippolito v. TJC Dev., LLC, 83 AD3d 57, 920 N.Y.S.2d 108 [2d Dept 2011] ). “The party seeking the benefit of collateral estoppel must prove that the identical issue was necessarily decided in the prior action and is decisive in the present action, and the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to contest the prior determination” (G. Rama Construction Enterprises, Inc. v. 80–82 Guernsey Street Associates, LLC, 43 AD3d 863, 841 N.Y.S.2d 669 [2d Dept 2007] ). “The doctrines of res judicata and collateral estoppel apply to arbitration awards with the same force and effect as they apply to judgments of a court” (Ippolito v. TJC Dev., LLC, 83 AD3d 57, 920 N.Y.S.2d 108 [2d Dept 2011] ).
The Baumann defendants argue plaintiff's claims arising out of his disqualification as a bus driver and subsequent termination were decided in the arbitration proceeding. After the Union filed a grievance challenging Baumann's decision to remove Mr. Diorio as a bus driver, an arbitration hearing was held. The Arbitrator issued his opinion and award on April 14, 2009, finding Baumann did not violate the collective bargaining agreement when it removed Mr. Diorio as a bus driver at the request of the School District, but it did violate the agreement by terminating Mr. Diorio from all employment at Baumann. Baumann was directed to assign Mr. Diorio any unit work he was able to perform for a period of twelve months from the date he was removed as a driver. “[R]es judicata only bars additional actions between the same parties on the same claims based upon the same harm” (Employers' Fire Insurance Company v. Brookner, 47 AD3d 754, 850 N.Y.S.2d 554 [2d Dept 2008] ). Res judicata is inapplicable to the arbitration award, as neither the plaintiff nor William Heitmann were parties to the arbitration. Furthermore, the Baumann defendants fail to demonstrate that the claims in this matter were actually decided or could have been decided in the arbitration proceeding ( see Courthouse Corporate Ctr. LLC v. Schulman, 74 AD3d 725, 902 N.Y.S.2d 160 [2d Dept 2010] ). Article VII of the collective bargaining agreement sets forth the procedures for resolving grievances and disputes between employees and Baumann. Pursuant to the agreement, a grievance may under certain circumstances be submitted to an Arbitrator for decision. However, a grievance is limited to only those disputes which relate to the meaning, application, and interpretation of the agreement. (Plaintiff's Exhibit A, Agreement between Local 100 Transport Workers Union AFL–CIO and Baumann & Sons Buses, Inc., p. 15–16). The allegations in the complaint do not relate to the meaning, application, and interpretation of the agreement, and therefore, could not have been considered by the Arbitrator ( see Mahler v. Campagna, 60 AD3d 1009, 876 N.Y.S.2d 143 [2d Dept 2009] ).
Insofar as the Baumann defendants contend that plaintiff's claims are barred by collateral estoppel, defendants fail to sustain their burden of demonstrating that the issues in the instant action, which are or may be determinative thereof, were decided in the arbitration proceeding ( see Mahler v. Campagna, 60 AD3d 1009, 876 N.Y.S.2d 143 [2d Dept 2009] ). In any event, the record demonstrates that plaintiff lacked a full and fair opportunity to litigate the causes of action asserted in the complaint. The arbitration opinion and award states the issues in that proceeding were limited to whether Baumann violated the collective bargaining agreement when it terminated Mr. Diorio as an employee and the remedy (Baumann defendants' Exhibit B). The collective bargaining agreement clearly indicates that arbitration is limited to only those disputes which relate to the meaning, application, and interpretation of the agreement (Plaintiff's Exhibit A, Agreement between Local 100 Transport Workers Union AFL–CIO and Baumann & Sons Buses, Inc., p. 15–16).
The Baumann defendants argue the allegations in this matter are identical to the claims adjudicated against the same defendants in the Federal action. Plaintiff filed suit in Federal Court, alleging violations of his constitutional right to due process under 42 U.S.C.1983. Plaintiff also asserted state law claims for libel and libel per se against defendants Baumann, Heitmann, and Sanchez and for prima facie tort against all defendants. Defendants moved to dismiss plaintiff's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants argue the Court dismissed plaintiff's amended complaint in its entirety. In a decision and order dated September 27, 2010, the Court dismissed plaintiff's federal claims. The Court declined to exercise supplemental jurisdiction over plaintiff's state law claims and they were dismissed without prejudice (Affirmation of David F. Kwee, dated October 29, 2010, Exhibit B). Accordingly, the causes of action asserted against the Baumann defendants are not subject to dismissal on the grounds of res judicata or collateral estoppel ( see Mahler v. Campagna, 60 AD3d 1009, 876 N.Y.S.2d 143 [2d Dept 2009] ).
“In considering a motion to dismiss for failure to state a cause of action (see CPLR 3211[a][7] ), the pleadings must be liberally construed (see CPLR 3026). The sole criterion is whether from [the complaint's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law' “ (Doria v. Masucci, 230 A.D.2d 764, 646 N.Y.S.2d 363 [2d Dept 1996][internal citations omitted] ). “[A] court should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory' “ (Kass v. Zaslav, 55 AD3d 877, 865 N.Y.S.2d 577 [2d Dept 2008], citing Parsippany Construction Company v. Clark Patterson Associates, 41 AD3d 805, 839 N.Y.S.2d 179 [2d Dept 2007]. The complaint need only contain statements sufficiently particular to give notice of the transactions and occurrences intended to be proved and the material elements of each cause of action (CPLR 3013; East Hampton Union Free School District v. Sandpebble Builders, Inc., 66 AD3d 122, 884 N.Y.S.2d 94 [2d Dept 2009] ). However, “[i]t is well settled that bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on a motion to dismiss for failure to state a cause of action. When the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether she has stated one” (Meyer v. Guinta, 262 A.D.2d 463, 692 N.Y.S.2d 159 [2d Dept 1999]; Zurich Depository Corp. v. Iron Mountain Information Management, Inc., 61 AD3d 750, 879 N.Y.S.2d 143 [2d Dept 2009]; Euell v. Incorporated Village of Hempstead, 57 AD3d 837, 871 N.Y.S.2d 224 [2d Dept 2008] ). “If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a)(7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action” (Zurich Depository Corp. v. Iron Mountain Information Management, Inc., 61 AD3d 750, 879 N.Y.S.2d 143 [2d Dept 2009] ).
Plaintiff's first and second causes of action are against Heitmann, Baumann, and Sanchez for libel and libel per se. The elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged, at a minimum, by a negligence standard, and it must either cause special harm or constitute defamation per se (Salvatore v. Kumar, 45 AD3d 560, 845 N.Y.S.2d 384 [2d Dept 2007] ). Words are published within the meaning of the law of libel when they are in writing and are read by someone other than the person libeled and the person making the charges (Fedrizzi v. Washingtonville Cent. Sch. Dist., 204 A.D.2d 267, 611 N.Y.S.2d 584 [2d Dept 1994] ). “Words which affect a person in his or her profession by imputing to him or her any kind of fraud, dishonesty, misconduct, or unfitness in conducting one's profession may be actionable” (Wasserman v. Haller, 216 A.D.2d 289, 627 N.Y.S.2d 456 [2d Dept 1995] ). Where the libel is not defamatory per se, special damages must be pleaded (Aronson v. Wiersma, 65 N.Y.2d 592, 493 N.Y.S.2d 1006 [1985];Edelstein v. Farber, 27 AD3d 202, 811 N.Y.S.2d 358 [1st Dept 2006] ).
The Baumann defendants contend that the communications at issue are protected by the qualified privilege afforded to communications between individuals who have a common interest in the subject matter. The qualified privilege attaches where, as here, “the person making the statements does so fairly in the discharge of a public or private duty in which the person has an interest, and where the statement is made to a person or persons with a corresponding interest or duty” ( Jung Hee Lee Han v. State, 186 A.D.2d 536, 588 N.Y.S.2d 358 [2d Dept 1992] ). The rationale behind the qualified privilege is that, as long as the privilege is not abused, the flow of information between persons who share a common interest should not be impeded (Herlihy v. Metro. Museum of Art, 214 A.D.2d 250, 633 N.Y.S.2d 106 [1st Dept 1995] ). Here, plaintiff alleges the September 4, 2008 letter drafted by Sanchez was distributed to Heitmann, the Terminal Manager at Baumann, Jim Tedesco, Baumann's Senior Director of Safety and Training, and Michael Carr, plaintiff's union representative. It is alleged the September 8, 2008 email drafted by Heitmann was sent to Mary Fountain, Supervisor of Transportation for the School District (Baumann defendants' Exhibit A, Complaint, p. 15, 17). The qualified privilege applies to the allegedly defamatory statements since Sanchez, Heitmann, and Baumann shared a common interest with the alleged recipients in dealing with a complaint that plaintiff threatened to drive over an employee and was not acting professionally ( see Davis v. Independent Transporters of the Handicapped, 226 A.D.2d 496, 641 N.Y.S.2d 114 [2d Dept 1996] ).
“Communications that are protected by a qualified privilege are not actionable unless a plaintiff can demonstrate that the declarant made the statement with malice. Malice in this context has been interpreted to mean spite or a knowing or reckless disregard of a statement's falsity” (Rosenberg v. Metlife, Inc., 8 NY3d 359, 834 N.Y.S.2d 494 [2007];Shaw v. Club Mgrs. Assn. of Am., Inc., 923 N.Y.S.2d 127 [2d Dept 2011] ). The complaint alleges that Sanchez and Heitmann acted with malice, reckless, and intentional indifference to the truth (Baumann defendants' Exhibit A, Complaint, p. 15, 17). Plaintiff alleges Sanchez wrote a defamatory letter so that plaintiff's ability to work would be placed in jeopardy. It is alleged that Heitmann's email states Baumann was bound by the Union from doing anything, if charges were brought against plaintiff he would get off with only a warning, and specifically implores the School District to disqualify plaintiff. Baumann and the School District allegedly worked together to terminate the plaintiff by using Heitmann's defamatory email. (Baumann defendants' Exhibit A, Complaint, p. 6–8). “Since ... the burden does not shift to the nonmoving party on a motion made pursuant to CPLR 3211(a)(7), a plaintiff has no obligation to show evidentiary facts to support [his] allegations of malice on a motion to dismiss pursuant to CPLR 3211(a)(7)” (Shaw v. Club Mgrs. Assn. of Am., Inc., 923 N.Y.S.2d 127 [2d Dept 2011]; Sokol v. Leader, 74 AD3d 1180, 904 N.Y.S.2d 153 [2d Dept 2010] ). Although the common interest privilege applies, plaintiff has adequately pleaded malice to survive a motion to dismiss the defamation claims.
The Baumann defendants argue the plaintiff has failed to plead special damages. Special damages contemplate the loss of something having economic or pecuniary value (Liberman v. Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857 [1992] ). In pleading special damages, actual losses must be identified and causally related to the alleged tortious act (L.W.C. Agency, Inc. v. St. Paul Fire & Marine Ins. Co., 125 A.D.2d 371, 509 N.Y.S.2d 97 [2d Dept 1986]; Matherson v. Marchello, 100 A.D.2d 233, 473 N.Y.S.2d 998 [2d Dept 1984] ). Plaintiff satisfies the requirement of pleading special damages in a defamation action by specifically alleging pecuniary losses arising from the termination of his employment (Herlihy v. Metro. Museum of Art, 214 A.D.2d 250, 633 N.Y.S.2d 106 [1st Dept 1995] ). In the complaint, plaintiff alleges that as a direct result of the actions of the defendants, he lost wages from September 2008 through October 2010 in the amount of $64,919 and he will continue to lose wages and benefits. It is alleged he lost $7,779 in benefits during that same time period and has uncovered medical bills in the amount of $3,087 (Baumann defendants' Exhibit A, Complaint, p. 14). The Court finds plaintiff has adequately pleaded special damages. Taking the allegations in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the allegations are sufficient to state a cause of action to recover damages for defamation (Ingber v. Mallilo, 52 AD3d 569, 860 N.Y.S.2d 180 [2d Dept 2008]; Wasserman v. Haller, 216 A.D.2d 289, 627 N.Y.S.2d 456 [2d Dept 1995] ).
Plaintiff has also properly set forth a cause of action for libel per se. A defamatory statement is libelous per se, and a plaintiff need not plead or prove special damages, if it imputes fraud, dishonesty misconduct, or unfitness in conducting one's profession (Gjonlekaj v. Sot, 308 A.D.2d 471, 764 N.Y.S.2d 278 [2d Dept 2003]; Herlihy v. Metro. Museum of Art, 214 A.D.2d 250, 633 N.Y.S.2d 106 [1st Dept 1995] ). This exception is “limited to defamation of a kind incompatible with the proper conduct of the business, trade, profession or office itself. The statement must be made with reference to a matter of significance and importance for that purpose, rather than a more general reflection upon the plaintiff's character or qualities” (Liberman v. Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857 [1992] ). Here, the statement at issue, that plaintiff threatened to drive his car over the safety supervisor, relates to plaintiff's ability to carry out his duties as a bus driver. Since the ability to drive a vehicle safely is essential to the performance of plaintiff's duties, defendants' allegations reference a matter of significance and importance to plaintiff's profession ( see Herlihy v. Metro. Museum of Art, 214 A.D.2d 250, 633 N.Y.S.2d 106 [1st Dept 1995] ).
Plaintiff's third cause of action is against Heitmann, Sanchez, and Baumann for prima facie tort. Prima facie tort is not a catch all alternative for every cause of action that cannot stand on its own. However, where plaintiff asserts a cause of action for a traditional tort, it does not foreclose pleading prima facie tort in the alternative (Freihofer v. Hearst Corp., 65 N.Y.2d 135, 490 N.Y.S.2d 735 [1985] ). The elements of a cause of action sounding in a prima facie tort include (1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, (4) by an act or series or series of acts which are otherwise legal (Del Vecchio v. Nelson, 300 A.D.2d 277, 751 N.Y.S.2d 290 [2d Dept 2002] ). “A critical element of the cause of action is that plaintiff suffered specific and measurable loss, which requires an allegation of special damages” (Freihofer v. Hearst Corp., 65 N.Y.2d 135, 490 N.Y.S.2d 735 [1985] ). “[S]uch damages must be alleged with sufficient particularity to identify actual losses and be related causally to the alleged tortious acts” (Epifani v. Johnson, 65 AD3d 224, 882 N.Y.S.2d 234 [2d Dept 2009] ). To assert a claim for prima facie tort “the plaintiff must allege that disinterested malevolence was the sole motivation for the conduct of which he complains” (Shaw v. Club Mgrs. Assn. of Am., Inc., 923 N.Y.S.2d 127 [2d Dept 2011] ). “This means that the genesis which will make a lawful act unlawful must be a malicious one unmixed with any other and exclusively directed to injury and damage of another” (DeNaro v. Rosalia, 59 AD3d 584, 873 N.Y.S.2d 697 [2d Dept 2009]; Molinoff v. Sassower, 99 A.D.2d 528, 471 N.Y.S.2d 312 [2d Dept 1984] ).
Here, the complaint adequately pleads special damages (Baumann defendants' Exhibit A, p. 14, 19–20). Contrary to the Baumann defendants argument that plaintiff fails to allege disinterested malevolence, the complaint states Heitmann, Sanchez, and Baumann intentionally sought to harm plaintiff by having him disqualified and terminated, and by ruining his personal and business reputation. It is alleged the Baumann defendants' actions were without excuse or justification and motivated solely by malice to harm plaintiff (Baumann defendants' Exhibit A, Complaint, p. 19). Plaintiff alleges Sanchez worked in coordination with and at the behest of Heitmann and Baumann to have the School District disqualify plaintiff. It is alleged that Heitmann wished to have plaintiff terminated and Sanchez was coached by Baumann and Heitmann to write the defamatory letter so that plaintiff's ability to work would be placed in jeopardy. (Baumann defendants' Exhibit A, Complaint, p. 6). The allegations in the complaint are sufficient to state a cause of action for prima facie tort against the Baumann defendants.
Motion to Dismiss by the Ossining Defendants
The Ossining defendants move to dismiss the only cause of action against them for prima facie tort. The movants argue the complaint fails to allege their sole motive was to harm plaintiff and fails to allege special damages with specificity, both requisite elements to a cause of action for prima facie tort. Here, the complaint states in conclusory fashion that the actions of the School District, Fountain, and Glassman were without excuse or justification and motivated solely by malice to harm plaintiff. However, plaintiff alleges Heitmann wished to have the plaintiff terminated and the School District through the actions of Fountain “blindly followed” the lead of Baumann. It is alleged that Baumann asked that plaintiff be disqualified and the Ossining defendants rubber stamped the request without any independence or investigation knowing that Baumann made this request because there were no grounds to terminate plaintiff (Baumann defendant's Exhibit A, Complaint, p. 6, 21–22). Although the complaint contains an assertion that disinterested malevolence was the sole motivation for the Ossining defendants' conduct, the additional allegations in the complaint indicate otherwise (Etzion v. Etzion, 62 AD3d 646, 880 N.Y.S.2d 79 [2d Dept 2009] ). According to the complaint, the Ossining defendants acted at least in part to comply with a request made by Baumann ( see DeNaro v. Rosalia, 59 AD3d 584, 873 N.Y.S.2d 697 [2d Dept 2009] ). Plaintiff has failed to plead a cause of action for prima facie tort against the Ossining defendants. In any event, prima facie tort was designed to provide a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy, and not to provide a catch all alternative for other causes of action which are clearly insufficient as a matter of law (Freihofer v. Hearst Corp., 65 N.Y.2d 135, 490 N.Y.S.2d 735 [1985];Epifani v. Johnson, 65 AD3d 224, 882 N.Y.S.2d 234 [2d Dept 2009]; Vrontas v. Bonsal Seggerman & Co., 151 A.D.2d 568, 542 N.Y.S.2d 678 [2d Dept 1989] ).
In view of the foregoing, it is
ORDERED that the motion by Baumann & Sons Buses, Inc. and William Heitmann for an order dismissing the causes of action against Baumann and Heitmann is denied; and it is further
ORDERED that the request by the Baumann defendants for an award of costs and sanctions pursuant to 22 NYCRR 130–1.1 is denied, as defendants have not demonstrated that plaintiff's conduct was frivolous; and it is further
ORDERED that the branch of the motion by the Baumann defendants seeking costs and disbursements in connection with this motion is denied; and it is further
ORDERED that the branch of the motion by Ossining Union Free School District, Mary Fountain, and Phyllis Glassman for an order dismissing the cause of action against them for failure to state a cause of action is granted; and it is further
ORDERED that the branch of the motion by the Ossining defendants for an order dismissing the cause of action asserted against them for plaintiff's failure to comply with a condition precedent to the commencement of an action is denied as moot in light of the Court's determination; and it is further
ORDERED that the branch of the motion by the Ossining defendants seeking costs and disbursements is denied; and it is further
ORDERED that plaintiff's cross motion for an order granting leave to serve a late Notice of Claim is denied as moot in light of the Court's determination; and it is further
ORDERED that plaintiff's request for costs and disbursements is denied.
The foregoing constitutes the decision and order of this Court.