Opinion
August 4, 1960
Corwin Stuckart for defendant.
Albert M. Levert for plaintiff.
Motion for leave to serve a supplemental answer denied.
Ordinarily the merits of the proposed pleading are not considered on a motion of this type, but where it clearly appears that the amendment is without merit permission to amend will be denied (see Brancato v. Ambrosio, 8 Misc.2d 735; Hasen v. Apsel, 17 Misc.2d 858). Here, the defendant in the proposed supplemental answer intends to plead as a bar to the action the failure to comply with the requirement of section 3813 Educ. of the Education Law that a written verified claim be submitted before an action may be commenced. But it is obvious that the requirements of section 3813 do not apply to an action for a declaratory judgment respecting the alleged continuous violation by the defendant of section 1805 Educ. of the Education Law. As subdivision 1 of section 3813 reveals, it is claims which the school district or board of education has the power "to adjust or to pay" that must be filed. (See Matter of Randall v. Hoff, 4 Misc.2d 376; cf. Grant v. Town of Kirkland, 10 A.D.2d 474.) Settlement of the present controversy may not be made by payment.