Sheridan v. Town of Orangetown

21 A.D.3d 365, 799 N.Y.S.2d 575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 1, 2005
• Status: Published

Opinion

In an action to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (O’Rourke, J.), dated April 9, 2004, as, in effect, granted that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Roth v Goldman, 254 AD2d 405 [1998]). Here, the plaintiff, a retired police officer who previously was employed by the defendant, commenced this action following the defendant’s termination of certain benefits. The documentary evidence established, however, that the plaintiff’s claim was governed by a collective bargaining agreement and he failed to pursue the grievance procedure contained therein and exhaust his administrative remedies (see Manfro v McGivney, 11 AD3d 662 [2004]; Matter of O’Connor v Police Commn. of Town of Clarkstown, 301 AD2d 654 [2003]; Formica v Town of Huntington, 295 AD2d 400 [2002]). Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint. Adams, J.P., Krausman, Spolzino and Fisher, JJ., concur.