Pichardo v. Johnson

Appellate Division of the Supreme Court of New York

Pichardo v. Johnson

124 A.D.3d 452, 997 N.Y.S.2d 903

Appellate Division of the Supreme Court of the State of New York·Decided January 13, 2015·No. 13945N 110799/10·Published

Opinion

*453 Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 29, 2013, which, insofar as appealed from as limited by the briefs, denied plaintiffs motion to amend the complaint, and sua sponte dismissed the complaint as against defendant Robin Johnson, unanimously modified, on the law, the complaint reinstated as against defendant Johnson, and otherwise affirmed, without costs

The court properly denied the motion for leave to amend the complaint because the proposed amendment was lacking in merit (see e.g. Sharon Ava & Co. v Olympic Tower Assoc., 259 AD2d 315 [1st Dept 1999]). Plaintiff sought to assert claims against defendant Johnson in her individual capacity, but none of the allegations establish that Johnson acted outside the scope of her employment.

Johnson did not move to dismiss the claims against her in her official capacity as principal of the school where plaintiff was a probationary teacher and the court should not have dismissed them sua sponte (see e.g. Purvi Enters., LLC v City of New York, 62 AD3d 508, 509 [1st Dept 2009]).

Concur — Tom, J.P, Friedman, Acosta, Saxe and Kapnick, JJ.

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*453 Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 29, 2013, which, insofar as appealed from as limited by the briefs, denied plaintiffs motion to amend the complaint, and sua sponte dismissed the complaint as against defendant Robin Johnson, unanimously modified, on the law, the complaint reinstated as against defendant Johnson, and otherwise affirmed, without costs

The court properly denied the motion for leave to amend the complaint because the proposed amendment was lacking in merit (see e.g. Sharon Ava & Co. v Olympic Tower Assoc., 259 AD2d 315 [1st Dept 1999]). Plaintiff sought to assert claims against defendant Johnson in her individual capacity, but none of the allegations establish that Johnson acted outside the scope of her employment.

Johnson did not move to dismiss the claims against her in her official capacity as principal of the school where plaintiff was a probationary teacher and the court should not have dismissed them sua sponte (see e.g. Purvi Enters., LLC v City of New York, 62 AD3d 508, 509 [1st Dept 2009]).

Concur — Tom, J.P, Friedman, Acosta, Saxe and Kapnick, JJ.

Pichardo v. Johnson, 124 A.D.3d 452, 997 N.Y.S.2d 903 (N.Y. Ct. App. 2015).

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Opinion

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