| Wharry v Lindenhurst Union Free School Dist. |
| 2009 NY Slip Op 06424 [65 AD3d 1035] |
| September 8, 2009 |
| Appellate Division, Second Department |
| Marissa Wharry, Appellant, v Lindenhurst Union FreeSchool District et al., Respondents. (Matter No. 1.) In the Matter of Marissa Wharry, Appellant,v Lindenhurst Union Free School District, Respondent. (Matter No.2.) |
—[*1] Guercio & Guercio, LLP, Farmingdale, N.Y. (Joady Benjamin Feiner of counsel), forrespondents in Matter No. 1 and respondent in Matter No.2.
In an action, inter alia, to recover damages for civil rights violations (matter No. 1), and arelated proceeding pursuant to CPLR article 78 to review a determination of the LindenhurstUnion Free School District (matter No. 2), Marissa Wharry appeals from (1) an order of theSupreme Court, Suffolk County (Tanenbaum, J.), dated July 23, 2007, which granted thedefendant's motion pursuant to CPLR 3211 (a) (4) and (7) to dismiss the complaint in matter No.1, and (2) a judgment of the same court, also dated July 23, 2007, which denied the petition anddismissed the proceeding in matter No. 2.
Ordered that the order and the judgment are affirmed, with one bill of costs.
Marissa Wharry filed a petition pursuant to CPLR article 78 seeking to review adetermination of the Lindenhurst Union Free School District (hereinafter the District) not torenew her annual contract as varsity gymnastics coach, and to compel the District to renew herannual contract for that position (matter No. 2). Wharry also initiated a separate action fordamages against the District, its Superintendent of Schools, and "John Doe" 1-10 asserting twocauses of action. Specifically, Wharry alleged that the District's determination not to renew hercontract violated her civil rights and that after her contract was not renewed the defendantstortiously interfered with her attempts to secure other employment (matter No. 1). In the orderappealed from, the Supreme Court granted the defendants' motion to dismiss the complaint inmatter No. 1, and in the judgment appealed from, dismissed the CPLR article 78 proceeding inmatter No. 2. We affirm.
The District's determination not to renew Wharry's annual contract had a rational basis andwas neither arbitrary nor capricious (see Matter of Arrocha v Board of Educ. of City ofN.Y., 93 NY2d 361, 363 [1999]; cf. Matter of Board of Educ. of Monticello Cent.School Dist. v Commissioner of Educ., [*2]91 NY2d 133,139 [1997]; see also Matter of Needleman v County of Rockland, 270 AD2d 423[2000]). Accordingly, the Supreme Court properly dismissed the CPLR article 78 proceeding inmatter No. 2.
The complaint in matter No. 1 could not be dismissed pursuant to CPLR 3211 (a) (4) asduplicative of the petition in matter No. 2, as the relief sought by the complaint and the petitionwas not substantially the same (cf.Simonetti v Larson, 44 AD3d 1028 [2007]). However, the allegations in Wharry'scomplaint were insufficient to state a cause of action to recover damages for any civil rightsviolation. In addition, Wharry's vague and conclusory factual allegations do not state a cause ofaction to recover damages for tortious interference with her attempts to secure employment withother school districts (see Jacobs vContinuum Health Partners, 7 AD3d 312, 313 [2004]). Accordingly, the Supreme Courtproperly granted that branch of the defendants' motion which was pursuant to CPLR 3211 (a) (7)to dismiss the complaint in matter No. 1. Rivera, J.P., Balkin, Leventhal and Lott, JJ., concur.[See 2007 NY Slip Op 32297 (U).]