| Hale v Scopac |
| 2010 NY Slip Op 05453 [74 AD3d 1906] |
| June 18, 2010 |
| Appellate Division, Fourth Department |
| Stephen Hale, Individually and Doing Business as Hale's BusGarage, Appellant, v Paul Scopac, Individually and as Vice-President of Clinton Central SchoolDistrict Board of Education, et al., Respondents. |
—[*1] The Law Firm of Frank W. Miller, East Syracuse (Frank W. Miller of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Oneida County (Samuel D. Hester, J.), enteredFebruary 10, 2009. The order granted defendants' motion to dismiss the amended complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for, inter alia, slanderarising out of statements made by defendant Paul Scopac, vice-president of the Clinton CentralSchool District Board of Education (School Board), and defendant Guy Van Baalen, a memberthereof, concerning plaintiff's bid to provide bus maintenance and storage services to the schooldistrict. Supreme Court properly granted defendants' pre-answer motion to dismiss the amendedcomplaint for failure to file a timely notice of claim. We reject the contentions of plaintiff that hewas not required to file a notice of claim because the complaint alleges intentional wrongdoingon the part of defendants, and because he was suing defendants both individually and in theirofficial capacities. The record establishes that the alleged statements were made by defendants inthe context of addressing official business at a School Board meeting and not in their individualcapacities. A notice of claim is required where, as here, "the conduct complained of [by plaintiff,e.g., slander,] occurred during the discharge of the defendant[s'] duties within the scope of [their]employment" (DeRise v Kreinik,10 AD3d 381, 382 [2004]). Furthermore, although plaintiff sued defendants in theirindividual capacities, plaintiff was nevertheless required to file a notice of claim prior tocommencing this action in view of the context in which the alleged statements were made(see Education Law § 3813 [1]; see generally Ruggiero v Phillips, 292AD2d 41, 44-45 [2002]), and it is undisputed that plaintiff failed to do so.Present—Centra, J.P., Peradotto, Lindley and Pine, JJ.