Opinion
2011-08-9
James M. Rose, White Plains, N.Y., for appellant.Donoghue, Thomas, Auslander & Drohan, Yonkers, N.Y. (Ana I. Gonzalez of counsel), for respondents.
In an action for specific performance of a collective bargaining agreement, the plaintiff appeals from an order of the Supreme Court, Westchester County (Giacomo, J.), entered December 23, 2010, which denied its motion, inter alia, to convert the action to a declaratory judgment action and for summary judgment on the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff correctly contends that, since it was seeking only equitable relief, and not money damages, it was not required to serve a notice of claim under Education Law § 3813(1) ( see Kahn v. New York City Dept. of Educ., 79 A.D.3d 521, 522, 915 N.Y.S.2d 26; Matter of Yagan v. Bernardi, 256 A.D.2d 1225, 684 N.Y.S.2d 117; Ruocco v. Doyle, 38 A.D.2d 132, 133–134, 327 N.Y.S.2d 933).
The Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff's motion which was to convert the action to a declaratory judgment action. There is only one form of civil action (see CPLR 103[a] ), so there is no need to convert this action in order for the plaintiff to seek declaratory relief (cf. CPLR 3025[b]; Lucido v. Mancuso, 49 A.D.3d 220, 222, 851 N.Y.S.2d 238).
The Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on the complaint, as the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law ( see Ashley Homes of Long Is., Inc. v. County of Suffolk, 58 A.D.3d 772, 773, 872 N.Y.S.2d 170; Creative Kids Enrichment, LLC v. Yorktown Off. Warehouse, LLC, 41 A.D.3d 416, 417, 838 N.Y.S.2d 149).
The plaintiff's remaining contentions are without merit.