Summary
holding that plaintiff was required to comply with notice of claim provisions where complaint's assertions that school principal's actions in engaging in willful course of malicious conduct designed to defame and inflict emotional distress upon plaintiff constituted conduct “intimately related to the discharge of his duties as a principal and the legitimate goals of the [school d]istrict”
Summary of this case from Stahura–Uhl v. Iroquois Cent. Sch. Dist.Opinion
April 3, 1995
Appeal from the Supreme Court, Nassau County (Adams, J.).
Ordered that the order is affirmed, insofar as appealed and cross appealed from, without costs or disbursements.
We reject the contention of the defendant Port Washington Union Free School District (hereinafter the District) that the Supreme Court erred in not dismissing the complaint because of the failure of the plaintiff John McCormack to appear for an examination pursuant to General Municipal Law § 50-h. Under that section, dismissal is required only if a claimant fails to appear for a hearing, or adjourns a scheduled examination to a time more than ninety days after service upon the claimant of a demand for an examination (see, General Municipal Law § 50-h, [5]). In the matter at bar, although John McCormack did not actually adjourn the examination to a time more than 90 days after service upon him of the District's demand, more than 90 days did actually elapse without an examination. Under such circumstances, it was the obligation of the District to reschedule the examination. Thus, it was not an improvident exercise of discretion for the Supreme Court to deny the District's motion to dismiss the complaint (see, Ambroziak v County of Erie, 177 A.D.2d 974; cf., Bailey v New York City Health Hosps. Corp., 191 A.D.2d 606; Best v City of New York, 97 A.D.2d 389, affd 61 N.Y.2d 847).
We also reject the plaintiffs' contention that the Supreme Court improperly dismissed the second, fourth, sixth, eighth, tenth, and twelfth causes of action since they assert causes of action against the codefendant Richard V. Barry (hereinafter Barry) for statements made by him in his individual capacity, rather than as an agent or employee of the District. The allegations contained in the aforesaid causes of action assert that Barry engaged in a willful course of malicious conduct designed to defame and inflict emotional distress upon McCormack, and did so through conduct intimately related to the discharge of his duties as a principal, and the legitimate goals of the District (see, Agins v Darmstadter, 153 A.D.2d 600; Cioffi v Giannone, 56 A.D.2d 620; cf., Radvany v Jones, 184 A.D.2d 349). Our examination of this record leads us to conclude that, even viewed in the light most favorable to the plaintiffs, Barry's course of conduct as alleged by them constituted conduct within the scope of his employment. Moreover, by realleging each and every prior paragraph of the complaint as the first allegation in each of the aforesaid causes of action, the plaintiffs have belied their argument that the statements in question were not made within the scope of Barry's employment.
We have examined the parties' remaining contentions and find them to be without merit. Bracken, J.P., O'Brien, Santucci and Florio, JJ., concur.