Dellith v. Oneonta City School District

• Decision Date: 08 February 2001
• Citation: 280 A.D.2d 864,720 N.Y.S.2d 637
• Parties: HANS W. DELLITH, Appellant,<BR>v.<BR>ONEONTA CITY SCHOOL DISTRICT et al., Respondents.
• Court: New York Supreme Court — Appellate Division

280 A.D.2d 864

720 N.Y.S.2d 637

HANS W. DELLITH, Appellant,

v.ONEONTA CITY SCHOOL DISTRICT et al., Respondents.

Decided February 8, 2001.

Mercure, Crew III, Peters and Rose, JJ., concur.

Cardona, P. J.

Plaintiff was employed by defendant Oneonta City School District (hereinafter the District), pursuant to a written agreement with a renewal clause, as Superintendent for a term beginning July 1, 1993 and ending June 30, 1997. On November 28, 1995, plaintiff notified the District that he would not be seeking an extension of his employment beyond June 30, 1997. In February 1997, the District provided plaintiff with a printout setting forth various sick leave and vacation days he had accumulated during his employment. On March 14, 1997, plaintiff advised the District that he was taking vacation effective April 15, 1997. On that date, he commenced employment as the Superintendent of a school district in Rhode Island. Although plaintiff still had unused leave time, the District refused to compensate him.

Thereafter, plaintiff commenced this action against the District and defendant Board of Education of the Oneonta City School District seeking, inter alia, monetary reimbursement for unused sick, vacation and personal leave. Defendants served an answer with four counterclaims alleging breach of the written employment agreement. Thereafter, defendants moved, inter alia, for an order of preclusion based upon plaintiff's alleged failure to comply with certain discovery demands. Plaintiff, in turn, cross-moved for dismissal of the counterclaims pursuant to CPLR 3211 (a) (1) and (7). Supreme Court denied plaintiff's cross motion resulting in this appeal.

Initially, we note that inasmuch as plaintiff's notice of appeal discloses that he is appealing only from that portion of Supreme Court's order as denied his motion under CPLR 3211 (a) (7), he has waived his argument that the counterclaims should have been dismissed under CPLR 3211 (a) (1) (see, Clifford R. Gray, Inc. v City School Dist., 277 AD2d 843, 846-847; Boyle v Taylor, 255 AD2d 411, 412). Nevertheless, even if we were to consider the merits of this claim, we would find it unpersuasive. The employment agreement is at the heart of plaintiff's dismissal motion regardless of whether we are considering CPLR 3211 (a) (1) or (7). With regard to outside employment, the agreement states that: "The Superintendent shall devote his full-time, skill, labor and attention to the discharge of his duties during the term of this Agreement; provided, however, that he may undertake consultive work, speaking engagements, writings, lecturing or other professional duties, obligations and activities, with or without remuneration, so long as such activities do not interfere with the full and faithful discharge of the Superintendent's duties and responsibilities as specified herein." Plaintiff argues that he was entitled to engage in outside employment under the terms of the above provision and, due to the fact that he was on vacation when he commenced employment in Rhode Island, he did not violate its terms.

We note that to obtain dismissal of a claim on the basis of documentary evidence under CPLR 3211 (a) (1), such evidence "must be such that it...