| Forcucci v Board of Educ. of Hamburg Cent. Sch. Dist. |
| 2017 NY Slip Op 04624 [151 AD3d 1660] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| Catherine Schrauth Forcucci, Appellant, v Board of Educationof Hamburg Central School District, Respondent. (Appeal No. 1.) |
Murphy Meyers LLP, Orchard Park (Margaret A. Murphy of counsel), forplaintiff-appellant.
Hodgson Russ LLP, Buffalo (Patrick J. Hines of counsel), for defendant-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (DianeY. Devlin, J.), entered December 3, 2015. The order and judgment denied plaintiff's motion forsummary judgment on the second and fourth causes of action.
It is hereby ordered that the order and judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiff, a former member of defendant, Board of Education of HamburgCentral School District (Board), commenced this action after the Board sought plaintiff's removalfrom the Board pursuant to Education Law § 1709 (18). In appeal No. 1, plaintiffappeals from an order and judgment that denied her motion for summary judgment on the secondand fourth causes of action, which asserted that the Board violated plaintiff's First Amendmentright of access when it closed to the general public the first three days of her removal hearing. Inappeal No. 2, the Board appeals from an order and judgment that, inter alia, denied its crossmotion for leave to amend its answer to assert as a defense that plaintiff lacks standing.
In appeal No. 1, we conclude that Supreme Court erred in denying plaintiff's motion on theground that she lacked standing. By failing to include that defense in its verified answer or in apre-answer motion to dismiss, the Board waived it (see Matter of Fossella v Dinkins, 66NY2d 162, 167-168 [1985]; Matter of Santoro v Schreiber, 263 AD2d 953, 953 [1999],appeal dismissed 94 NY2d 817 [1999]). Nevertheless, we affirm the order and judgmentin appeal No. 1 on the alternative ground that plaintiff failed to establish her entitlement tosummary judgment on her First Amendment causes of action.
The First Amendment, made applicable to the States through the Fourteenth Amendment,prohibits the government from "abridging the freedom of speech, or of the press; or the right ofthe people peaceably to assemble, and to petition the Government for a redress of grievances"(US Const First Amend). "[A] trial courtroom . . . is a public place where the peoplegenerally—and representatives of the media—have a right to be present, and wheretheir presence historically has been thought to enhance the integrity and the quality of what takesplace" (Richmond Newspapers, Inc. v Virginia, 448 US 555, 578 [1980]). The UnitedStates Supreme Court has applied a two-part test to determine whether there was a right of accessunder the First Amendment (see Press-Enterprise Co. v Superior Court of Cal., County ofRiverside, 478 US 1, 8-10 [1986]), and the Court of Appeals has used that test to determinewhether there is a right of access to a professional disciplinary hearing (see Matter of JohnsonNewspaper Corp. v Melino, 77 NY2d 1, 5 [1990]). The test requires a court to consider"whether the place and process have historically been open to the press and general public andwhether public access plays a significant positive role in the functioning of the particular processin question" (id. at 5 [internal quotation marks omitted]; see Press-Enterprise Co.,478 US at 8). Once it has been determined that there is such a right of access, then the proceeding"cannot be closed unless specific, on the record findings are made demonstrating that closure isessential to preserve higher values and is narrowly tailored to serve that interest"(Press-Enterprise Co., 478 US at 13-14 [internal quotation marks omitted]).
Here, plaintiff failed to submit evidence establishing as a matter of law that removal hearingsconducted pursuant to Education Law § 1709 (18) have historically been open tothe public and that the public has played a significant positive role in such proceedings (seeJohnson Newspaper Corp., 77 NY2d at 7-8). We therefore conclude that the court properlydenied plaintiff's motion on the ground that plaintiff failed to meet her burden of establishing as amatter of law that there is a First Amendment right of access to an Education Law§ 1709 (18) removal proceeding.
We reject the Board's contention in appeal No. 2 that the court abused its discretion indenying its cross motion seeking leave to amend its answer. "[L]eave to amend a pleading shouldbe freely granted in the absence of prejudice to the nonmoving party where the amendment is notpatently lacking in merit" (Baker vCounty of Oswego, 77 AD3d 1348, 1350 [2010] [internal quotation marks omitted];see CPLR 3025 [b]). "Prejudice has been defined as a special right lost in the interim, achange in position, or significant trouble or expense that could have been avoided had theoriginal pleading contained the proposed amendment" (Ward v City of Schenectady, 204AD2d 779, 781 [1994]; see Dawley vMcCumber, 45 AD3d 1399, 1400 [2007]). Here, plaintiff established that she wouldsuffer prejudice as a result of the amendment, and it therefore cannot be said that the courtabused its discretion in denying the cross motion. Present—Whalen, P.J., Smith, Centraand Scudder, JJ.