Civil Serv. Emps. Ass'n Inc. v. Bd. of Educ. of City of Yonkers

Full title: Civil Service Employees Association, Inc., etc., appellant, v. Board of…

Court: SUPREME COURT OF THE S TATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

Date published: Aug 9, 2011

No. 2011-01135 (N.Y. App. Div. Aug. 9, 2011)

Opinion

2011-01135 Index No. 13208/10

08-09-2011

Civil Service Employees Association, Inc., etc., appellant, v. Board of Education of City of Yonkers, et al., respondents.

James M. Rose, White Plains, N.Y., for appellant. Donoghue, Thomas, Auslander & Drohan, Yonkers, N.Y. (Ana I. Gonzalez of counsel), for respondents.

REINALDO E. RIVERA

, J.P.

JOSEPH COVELLO

ANITA R. FLORIO

PLUMMER E. LOTT, JJ.

James M. Rose, White Plains, N.Y., for appellant.

Donoghue, Thomas, Auslander & Drohan, Yonkers, N.Y. (Ana I. Gonzalez of counsel), for respondents.

DECISION & ORDER

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 AD3d 521, 522; Matter of Yagan v Bernardi, 256 AD2d 1225; Ruocco v Doyle, 38 AD2d 132, 133-134).

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 AD3d 220, 222).

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 AD3d 772, 773; Creative Kids Enrichment, LLC v Yorktown Off. Warehouse, LLC, 41 AD3d 416, 417).

The plaintiff's remaining contentions are without merit.

RIVERA, J.P., COVELLO, FLORIO and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court