Cacheiro v. Middletown Enlarged City School District

29 A.D.3d 846, 814 N.Y.S.2d 535

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 2006
• Status: Published

Opinion

an action, inter alia, to recover damages for fraud, the plaintiffs appeal from an order of the Supreme Court, Orange County (Slobod, J.), dated May 20, 2005, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant made a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In opposition thereto, the plaintiffs failed to raise a triable issue of fact, and conceded that all of the causes of action properly raised in their complaint are academic. Accordingly, the Supreme Court correctly granted the defendant’s motion for summary judgment dismissing the complaint. As for the cause of action the plaintiffs contend is not academic, the defendant made a prima facie showing that it was not included in the notice of claim the plaintiffs served prior to commencing this action. The plaintiffs failed to raise a triable issue of fact in response. Since the plaintiffs failed to comply with a condition precedent to interposition of the cause of action based on that purportedly viable claim (see Education Law § 3813; H. Verby Co. v Carle Place Union Free School Dist, 5 AD3d 730 [2004]), the defendant was entitled to summary judgment dismissing that cause of action as well. Miller, J.P., Ritter, Skelos and Lifson, JJ., concur.