Matrisciano v. Board of Education of City School District

263 A.D.2d 472, 692 N.Y.S.2d 729, 1999 N.Y. App. Div. LEXIS 7882

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1999
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of a collective bargaining agreement, the plaintiff appeals from an order of the Supreme Court, Nassau County (Segal, J.), dated July 6, 1998, which granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211. To the extent that the plaintiff sought reinstatement with back pay to her position as a school bus driver based upon alleged violations of her contractual rights, her failure to file a notice of claim is fatal to her case (see, Matter of Stevens v Board of Educ., 261 AD2d 698; Matter of Sainato v Western Suffolk BOCES, 242 AD2d 301; Matter of McClellan v Alexander Cent. School Bd. of Educ., 201 AD2d 898). In any event, the Supreme Court correctly determined that the collective bargaining agreement did not require that the plaintiff be given notice of charges and a hearing and therefore there was no contractual violation (see, Matter of Montero v Lum, 68 NY2d 253, 257, n 3; Matter of Robbins v Malone Cent. School Dist., 182 AD2d 890).

The plaintiffs remaining contentions are without merit (see, Matter of Voorhis v Warwick Val. Cent. School Dist., 92 AD2d 571; see also, Matter of Lutwin v Alleyne, 58 NY2d 889; Brandt v Board of Coop. Educ. Servs., 820 F2d 41, 43). O’Brien, J. P., Sullivan, H. Miller and Smith, JJ., concur.