The following electronically filed papers were read upon this motion: Notice of Motion/Order to Show Cause 8-13 Answering Papers 18-31 Reply 32 Decision/Order The plaintiff claims that the defendants breached a contract and committed fraud that has caused him to lose 27 percent of his New York State teacher’s retirement pension. The terms of a 2018 settlement agreement between plaintiff and the defendant school district provided that the plaintiff would be placed on a leave of absence/medical sabbatical and then extended sick leave for a total of one year and five months immediately followed by his retirement. During that time period, the plaintiff was paid his full salary and received his full benefits although he was not actively teaching. Subsequent to plaintiff’s execution of the settlement agreement, the plaintiff was notified in writing by the New York State Teachers Retirement System (NYSTRS) that the period of one year and five months would not count toward his service credit/was not “pensionable;” therefore, when he was set to retire in January 2020, he would not have completed thirty (30) years of service credit entitling him to a full pension. Because the NYSTRS credited plaintiff with less than 30 years of service, plaintiff was advised that he would receive an approximately 27 percent reduction in his pension, for the remainder of his retirement. The defendants move for dismissal of the entire complaint as alleged against them, pursuant to CPLR §§3211 (a)(1), (a)(5), and (a)(7). Plaintiff received the preliminary determination from the NYSTRS dated October 11, 2019 advising him of the reduction in his pension due to being credited with less than 30 years of service. That letter specifically referred to the leaves referred to in the agreement and it stated that “we have determined these would not be pensionable for salary or service credit purposes.” In November 2019, the plaintiff thereafter registered, in writing, his formal disagreement with the NYSTRS determination and requested reconsideration. Plaintiff’s attorney, who also represented plaintiff in connection with the settlement agreement, also sent a letter dated December 10, 2019 on plaintiff’s behalf to the NYSTRS requesting reconsideration of the preliminary determination regarding service credit. The NYSTRS responded by letter dated January 10, 2020 that they received the requests for reconsideration and advised plaintiff that he might want to change his date of retirement/withdraw his retirement papers while his service record was under review. Plaintiff then withdrew his retirement application, deciding to wait for the NYSTRS to make a final determination. There is no dispute that the NYSTRS’s final determination was issued in writing on May 4, 2020 and delivered to plaintiff. Once again, the NYSTRS determined that plaintiff was not entitled to salary and service credit for the one-year-and-five-month period in question. The NYSTRS’s cogent seven-page final determination, with attachments, was never challenged by the plaintiff although the last paragraph of the final determination advises that “[y]ou may appeal this determination only pursuant to Article 78 of the Civil Practice Law and Rules, which provides a four-month statute of limitations on such actions (from the date of this letter).” Further undisputed is the fact that the defendants in this action have no role in determining or authority to determine salary and/or service credits, nor can the defendants bind the NYSTRS by any employment agreement negotiated between plaintiff and the defendants. The plaintiff was apparently fully aware that he would sustain this 27 percent pension reduction because he admits having received both the preliminary and final determinations of the NYSTRS that spell out the 27 percent reduction in pension benefits based upon the calculation of service credits specified therein. Furthermore, while awaiting the final NYSTRS determination that was issued in May 2020, the plaintiff acknowledges that he sought employment as a teacher in all Long Island school districts, in Queens, and in Brooklyn to complete the one-year-and-five-month time period that would give him 30 years of service credit and a full pension.1 Plaintiff’s Claims Are Time-Barred Education Law §3813 (2-b) provides that an action or special proceeding against a school district must be commenced no more than one year after the cause of action arose. “For the purpose of section 3813, a claim accrues at the time the damages become ascertainable” (Almar Construction Corp. v. P. M. Hughes & Sons, Inc., 58 AD2d 615, 616 [2d Dept 1977]; see also Scherman v. Board of Education, 4 AD2d 831 [2d Dept 1974], aff’d 37 NY2d 839 [1975]). The Court agrees that the plaintiff’s claims accrued on May 4, 2020, the date of the NYSTRS final determination, not September 15, 2020, as plaintiff contends. Plaintiff asserts that the September 2020 date is the date when plaintiff received his first pension check and “truly lost 27 percent of his pension.” Plaintiff was well aware of the loss and arguably had been so for months before the NYSTRS even made its final determination. As noted, plaintiff even sought employment as a full-time teacher to gain the required service credits that would entitle him to a full pension before the NYSTRS final determination was issued. Plaintiff asserts in his opposition that Executive Order No. 202.8 issued at the outset of the COVID-19 pandemic in March 2020 and the nine subsequently issued executive orders tolled the running of the limitations period, not merely suspended it. The plaintiff is correct. Mandatory authority in this judicial department interpreting this very issue provides that “[a] toll suspends the running of the applicable period of limitation for a finite time period, and ‘[t]he period of the toll is excluded from the calculation of the [relevant time period'" (Brash v. Richards, 195 AD3d 582, 582 [2d Dept 2021], quoting Chavez v. Occidental Chemical Corp., 35 NY3d 492, 505 [2020]; see also O’Hara v. Silver, 2022 NY Slip Op 34087 [U] [Sup Ct Kings County 2022]). Accordingly, the 228-day toll extended the one-year limitations period from May 4, 2021 Until December 21, 2021.2 The instant action was commenced on February 11, 2022; therefore, it is untimely, and it is dismissible pursuant to CPLR §3211 (a)(5). The Complaint Fails to State a Cause of Action and is Refuted by the Agreement To succeed on a motion to dismiss based upon documentary evidence, “the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” (Scadura v. Robillard, 256 AD2d 567 [2d Dept 1998]). “[I]t is clear that judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts and any other papers, the contents of which are ‘essentially undeniable,’ would qualify as ‘documentary evidence’” (Fontanetta v. John Doe 1, 73 AD3d 78, 84-85 [2d Dept 2010]). Affidavits do not constitute documentary evidence in the context of a motion brought pursuant to CPLR ‘ 3211 (a)(1) (Id at 86). “Settlement agreements affecting a claim have been held by this Court to be a basis for a CPLR 3211 (a) (1) motion to dismiss where the terms are clear and unambiguous, and conclusively dispose of the matter” (Rudovic v. Rudovic, 131 AD3d 1225, 1226 [2d Dept 2015]). Plaintiff’s cause of action for breach of contract alleges that the defendants “fail[ed] to contact the NYSTRS and confirm that the NYSTRS would accept the one (1) year and five (5) months of ‘sick leave’ towards Plaintiff’s pension leave [defendants] placed Plaintiff on…” There is no such provision in the entire settlement agreement; moreover, in opposition, the plaintiff does not cite to a single section, paragraph, or any language requiring the defendants to contact the NYSTRS and confirm anything. Since the settlement agreement utterly refutes plaintiff’s breach of contract claim, that claim is dismissed pursuant to CPLR §3211 (a)(1). As to the cause of action alleging fraud/fraudulent inducement, the plaintiff asserts in his complaint that “[d]efendants made materially false and misleading statements to Plaintiff, by stating that Plaintiff did not have t return to the district to complete his one (1) year and five (5) months to receive full retirement, but that the one (1) year and five (5) months of sick leave defendants placed Plaintiff on would be counted as pensionable credit and therefore Plaintiff would have thirty (30) years’ time served and receive one-hundred percent (100 percent) of his pension. Defendants made the materially false statements both orally and in writing.” The terms of the settlement agreement clearly provide that the plaintiff “represents and acknowledges that in executing this Agreement, [plaintiff] does not rely upon any representation or statement made by a representative of the District with regard to the subject matter, basis or effect of this Agreement other than those contained herein.” Thus, by the terms of the agreement itself, the plaintiff could not rely upon any oral representations/statements made by any District representatives, even if he identified who made any such representations to him. Notably, the plaintiff does not identify anyone in his complaint as the person or persons who made the alleged false statements to him. When deciding a motion to dismiss pursuant to CPLR §3211(a)(7), the court must afford the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiffs the benefit of every favorable inference (see Marcantonio v. Picozzi III, 70 AD3d 655 [2d Dept 2010]). The sole criterion on a motion to dismiss is “whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cognizable action at law a motion for dismissal will fail” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]; see also Miglino v. Bally Total Fitness of Greater New York, Inc., 20 NY3d, 342, 351 [2013]; Leon v. Martinez, 84 NY2d 83, 87-88, [1994]; Sokol v. Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]; Gershon v. Goldberg, 30 AD3d 372, 373 [2d Dept 2006]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). The complaint must contain allegations of a representation of material fact, falsity, scienter, reliance and injury. (see Morales v. AMS Mortgage Services, Inc., 69 AD3d 691 [2d Dept 2010]). Moreover, the circumstances of the fraud must be stated in detail, including specific dates and items (CPLR ‘ 3016[b]). Pursuant to CPLR §3016(b), the circumstances constituting the alleged fraud must be “stated in detail” by plaintiff. Although “unassailable proof” at the pleading stage is not required, basic facts to establish the elements of the cause of action must be alleged. (Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 559 [2009], citing Pludeman v. Northern Leasing Systems, Inc., 10 NY3d 486 [2008]; see also Sargiss v. Magarelli, 12 NY3d 527 [2009]; Sforza v. Health Insurance Plan of Greater New York, Inc., 210 AD2d 214 [2d Dept 1994]; Meltzer v. Klein, 29 AD2d 548 [2d Dept 1967]). Plaintiff’s fraud claim is conclusory and lacking in specific detailed allegations against each of the named defendants. The Court further notes that during his General Municipal Law §50-h hearing (50-h hearing), the plaintiff attributes his understanding of the terms of the settlement agreement to the mediator, who is not a named defendant in this action. When questioned about his notice of claim, the exchange unfolded as follows: “Q: Paragraph 22 of the Notice of Claim says Respondents and their representatives communicated to Claimant during the settlement discussions that Claimant would receive 100 percent of Claimant’s pension if he retired on or around January 2020. Who told you that? A. At the mediation that is what I agreed on, that is what the mediator told me that is what the lawyers agreed on, that is what the term sheet says.” As noted, the plaintiff was represented by counsel at all times, including during the negotiations, mediation, and execution of the settlement agreement. Furthermore, neither the term sheet nor the settlement agreement state that the one-year-and-five-month period would be pensionable. Rather, the plaintiff represented in the settlement agreement that he “shall make every reasonable effort to confirm all prior service credit,” and that he “represents that he will turn 55 years of age on February 13, 2019 and that he will have thirty (30) years of service in the NYSTRS including his service working for New York City, no later than January 1, 2020.” When asked at his 50-h hearing what steps he himself took to ensure that the time in question would be pensionable, he state that he took “[n]o steps.” The fact that Dr. Gilmore was plaintiff’s “point of contact” for any of plaintiff’s questions following the and was present at the mediation does not impute any duty upon him and does not alter the fact that the settlement agreement refutes plaintiff’s causes of action an demonstrates that the plaintiff does not have any causes of action against any of the named defendants, including Gilmore. The plaintiff’s claims are related to the settlement agreement and the alleged fraudulent inducement in getting him to execute said agreement that took place in July 2018. That defendant Gilmore may not have returned phone calls and emails in October 2019 is irrelevant to the plaintiff’s claims made in the complaint. The complaint is also dismissed pursuant to CPLR §§3211 (a)(1) and (a)(7). The foregoing constitutes the Decision and Order of this Court. FINAL DISPOSITION [ X ] NON-FINAL DISPOSITION [ ] Dated: March 6, 2023
