Widger v. Central School Dist. No. 1 of Towns of Ellicottville, Great Valley, East Otto, Franklinville, Humphrey and Mansfield, Cattaraugus County

• Decision Date: 27 February 1964
• Citation: 247 N.Y.S.2d 364,20 A.D.2d 296
• Court: New York Supreme Court — Appellate Division
• Parties: Jack E. WIDGER, Appellant, v. CENTRAL SCHOOL DISTRICT NO. 1 OF the TOWNS OF ELLICOTTVILLE, GREAT VALLEY, EAST OTTO, FRANKLINVILLE, HUMPHREY AND MANSFIELD, CATTARAUGUS COUNTY, et al., Respondents.

Page 364

247 N.Y.S.2d 364

20 A.D.2d 296

Jack E. WIDGER, Appellant, v. CENTRAL SCHOOL DISTRICT NO. 1 OF the TOWNS OF ELLICOTTVILLE GREAT VALLEY, EAST OTTO, FRANKLINVILLE, HUMPHREY AND MANSFIELD, CATTARAUGUS COUNTY, et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

February 27, 1964.

Musacchio & Pyle, Gowanda, for appellant; Roger E. Pyle, Gowanda, of counsel.

Jeremiah J. Moriarty, Franklinville, for respondents.

Before WILLIAMS, P. J., and BASTOW, HENRY, NOONAN, and DelVECCHIO, JJ.

NOONAN, Justice.

The plaintiff's amended complaint setting forth four alleged causes of action has been dismissed upon the merits with prejudice. From this determination the plaintiff appeals.

The defendants moved to dismiss each of the causes of action on the ground that each failed to state a cause of action (Rule 3211(a), par. 7 (CPLR)). Pursuant to subdivision (c) of that rule the attorney for defendants submitted his affidavit in support of the motion and the attorney for the plaintiff filed his reply affidavit in opposition. Special Term under this subdivision then treated the motion as one for summary judgment. This is permitted by this rule but when it is undertaken the provisions of Rule 3212(b), CPLR must obviously be complied with. Here Special Term based only on the affidavits of the attorneys without any other supporting proof in a memorandum decision found certain facts either not in dispute or incontrovertible. This was an apparent attempt to invoke the provisions of Rule 3212(g), CPLR. This subdivision is available only when summary judgment is denied or is granted in part. Summary judgment in toto was granted in favor of the defendants in this case. In addition, when the use of this rule is proper the facts found must be included in an order and are thereafter deemed established for all purposes in the action. The facts not in dispute were not included in the Special Term order in this case. Thus it was error to apply this section even if the facts found were included in the order since it has no application when summary judgment is fully granted to either party.

In any event summary judgment was improper in this case. There exist questions of fact which require a trial if the causes of action set forth in the plaintiff's complaint or any one of them states facts sufficient to constitute a cause. The most obvious question of fact is whether the defendants conspired to or intended to injure the plaintiff maliciously or otherwise. Special Term again in its memorandum found they did not. It was error to so find on the papers before the court. Therefore that portion of the order appealed from which dismissed the amended complaint on the merits with prejudice and granted summary judgment in favor of the defendants must be reversed.

Even though the Special Term order also provides that the amended complaint is dismissed on the ground that it fails to set forth causes of action we deem it our responsibility to examine each of the four alleged causes in the complaint because as set forth in the memorandum of Special Term each was found insufficient only when considered with the facts found, some of which findings were not supported by proper or adequate proof.

The first cause is one against all the defendants, i. e., the School District and the individual defendants. The plaintiff styles this an action for prima facie tort. As to the School District it must be dismissed. Section 3813, subdivision 2, Education Law requires that in all tort actions against the district a notice of claim must be filed in accordance with section 50-e, General Municipal Law. That section mandates that the action conform to the requirements of section 50-i, General Municipal Law which requires the complaint to contain an allegation that 30 days have elapsed since the filing of the notice of claim. There is no such allegation in the cause or indeed in the complaint. The plaintiff should, however, be given permission to replead against the district within 20 days, if so advised.

A cause of action in prima facie tort against the individual defendants is sufficiently stated. These defendants are not entitled to be indemnified by the district in this type of action under the provisions of section 3023, Education Law and thus no notice of claim is required as to them personally. (Sandak v. Tuxedo Union School Dist. No. 3, 308 N.Y. 226, 231, 124 N.E.2d 295, 298; O'Hara v. Sears Roebuck & Co., 286 App.Div. 104, 142 N.Y.S.2d 465.) In reaching this conclusion we do not reach or pass upon the theory of damages alleged by the plaintiff. Suffice it to say that in this cause there are allegations which set forth the intentional infliction of temporal or specific damage on the plaintiff by the individual defendants. These are sufficient for a cause in prima facie tort (Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 70 N.E.2d 401).

The second cause is against the School District only...