Elia v. Highland Cent. Sch. Dist.

• Decision Date: 04 November 2010
• Citation: 909 N.Y.S.2d 836,78 A.D.3d 1265
• Parties: Terri B. ELIA et al., Appellants, v. HIGHLAND CENTRAL SCHOOL DISTRICT, Respondent.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 836
78 A.D.3d 1265

Terri B. ELIA et al., Appellants,
v.
HIGHLAND CENTRAL SCHOOL DISTRICT, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 4, 2010.

909 N.Y.S.2d 837

Sussman & Watkins, Goshen (Michael H. Sussman of counsel), for appellants.

Shaw, Perelson, May & Lambert, L.L.P., Poughkeepsie (Mark C. Rushfield of counsel), for respondent.

Before: PETERS, J.P., ROSE, LAHTINEN, McCARTHY and GARRY, JJ.

PETERS, J.P.

78 A.D.3d 1266

Appeal from an order of the Supreme Court (Zwack, J.), entered October 17, 2009 in Ulster County, which, among other things, granted defendant's motion for summary judgment dismissing the complaint.

This dispute arises out of a change in the medical coverage, as well as certain other benefits, provided by defendant to plaintiffs, who are current and retired nonunionized employees of defendant. Plaintiffs Howard Geffner, Charles Thompson, Elizabeth Hughes and Julia Schmieg are retired employees of defendant who understood, either through previously signed memoranda of agreements or letter notification, that they would be entitled to 100% defendant-funded health insurance upon their retirement. Plaintiffs Terri B. Elia and Debbie Tompkins are current employees

909 N.Y.S.2d 838

of defendant who likewise believed, based upon previously executed memoranda of agreements, that they were entitled to defendant-funded health insurance, as well as compensation for accumulated sick and vacation days, upon retirement, and certain vacation and sick-day benefits during their employment.

In April 2007, defendant's Board of Education passed a resolution, effective July 1, 2007, which, as relevant here, required that nonunionized retired employees contribute 15% toward their health insurance coverage premiums and set forth the amount of sick leave and annual leave that could be accumulated and carried over from year-to-year by current employees. On July 18, 2008, plaintiffs commenced this action sounding in breach of contract. Following joinder of issue and discovery, Supreme Court granted defendant's motion for summary judgment dismissing the complaint. The court dismissed Schmieg's claim for failure to file a notice of claim as required by Education Law § 3813 and the claims of Elia and Tompkins as barred by the statute of limitations. With respect to all plaintiffs, the court found, among other things, that the purported contracts were unenforceable because the Board never adopted or ratified them. This appeal by plaintiffs ensued.

Supreme Court correctly determined that Schmieg's claim was barred due to her failure to serve the requisite notice of claim upon defendant ( see Education Law § 3813[1] ). At

78 A.D.3d 1267

Schmieg's deposition, counsel for defendant indicated that defendant had not received a notice of claim from Schmieg and requested that she provide a certified mail receipt. None was presented. Thereafter, in opposition to defendant's motion, plaintiffs' counsel averred that, despite diligent efforts to do so, his office was unable to locate the overnight mailing receipt, but that the notice was mailed overnight by the "office" on December 6, 2007 in the ordinary course of business. Although there is a presumption that notice has been delivered where there is proof of an office practice and procedure, followed in the regular course of business, which shows that notices were duly addressed and mailed ( see Matter of Gonzalez [Ross], 47 N.Y.2d 922, 923, 419 N.Y.S.2d 488, 393 N.E.2d 482 [1979]; Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829, 414 N.Y.S.2d 117, 386 N.E.2d 1085 [1978] ), the affidavit of counsel was woefully insufficient to invoke that presumption. Counsel did not specify the procedure that his office follows or who at the office would have mailed the notice, nor did he offer any affidavits from office staff that the usual procedures had been followed in this particular case ( see Matter of Trautman v. Savin Copy Prods., 200 A.D.2d 790, 790, 606 N.Y.S.2d 458 [1994]; Heffernan v. Village of Munsey Park, 133 A.D.2d 139, 140, 518 N.Y.S.2d 813 [1987]; Capra v. Lumbermens Mut. Cas. Co., 43 A.D.2d 986, 987, 352 N.Y.S.2d 58 [1974] ). Thus, Schmieg's claim was properly dismissed.¹

We next address plaintiffs' contention that Supreme Court improperly dismissed the claims of Elia and Tompkins as barred by the statute of limitations. Plaintiffs assert that, although Supreme Court correctly

909 N.Y.S.2d 839

determined that the statute of limitations began to run at the time they received notice that the resolution would be applied to them, the court erroneously found that Elia and Tompkins were notified of the changes on July 15, 2007, more than one year prior to the commencement of the instant action. As an alternative ground for affirmance, defendant argues that the alleged breach occurred at the time that the Board passed the resolution or, at the latest, on the July 1, 2007 effective date of the resolution, thus rendering the claims of each of the plaintiffs untimely.

Education Law § 3813(2-b) provides that an action against a school district...