Levert v. Central School District No. 6

New York Supreme Court

Levert v. Central School District No. 6

24 Misc. 2d 832, 204 N.Y.S.2d 5, 1960 N.Y. Misc. LEXIS 2614

CourtNew York Supreme Court

DecidedAugust 4, 1960

StatusPublished

Cited by3 cases

This text of 24 Misc. 2d 832 (Levert v. Central School District No. 6) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Levert v. Central School District No. 6, 24 Misc. 2d 832, 204 N.Y.S.2d 5, 1960 N.Y. Misc. LEXIS 2614 (N.Y. Super. Ct. 1960).

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Opinion

Mario Pittont, J.

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 of the Education Law that a written verified claim he 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 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 u 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.

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Mario Pittont, J.

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 of the Education Law that a written verified claim he 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 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 u 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.

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Bluebook (online)

24 Misc. 2d 832, 204 N.Y.S.2d 5, 1960 N.Y. Misc. LEXIS 2614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levert-v-central-school-district-no-6-nysupct-1960.

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