This action is brought by the plaintiff, the former Assistant Superintendent for Business for defendant Roosevelt Union Free School District ("District"), for breach of contract and what the complaint asserts is "detrimental reliance" in tendering his resignation pursuant to the alleged agreement (first and second causes of action). He also sues for defamation (third cause of action). With regard to the first two claims, the plaintiff seeks damages in the amount of $134,487.50, which he contends represents unused vacation and sick leave. The defamation claim is based on alleged defamatory utterances by the District's Superintendent, defendant Ronald O. Ross, accusing the plaintiff of having embezzled District funds. This is alleged to be slander per se.

The defendants move to dismiss pursuant to CPLR 3211(a)(5) [statute of limitations] for the plaintiff's failure to timely serve a notice of claim pursuant to Education Law § 3813, his failure to attend a required hearing pursuant to General Municipal Law § 50-h, and CPLR 3211(a)(1) [documentary evidence] and (a)(7) [failure to state a cause of action].

The Court agrees with the defendants that the claims premised on a breach of contract and detrimental reliance — the latter of which, although not expressly stated in the complaint, rests on a promissory estoppel theory — cannot stand.

A review of the attachments to the complaint reveals that the principal written agreement between the plaintiff and the District is a contract of employment dated June 7, [*2]2001. It was for an initial term of one year, but provided that it could be continued and "adjusted or modified by the BOARD from year to year." Among its terms, at paragraph 11(a) is a provision that vacation time shall be earned at a stated rate, but that "Vacation days have NO cash value and may NOT be carried over into subsequent school years. If the work load in the District is such that BOAKYE is unable to take vacation days to which he is entitled, he shall so notify the Board in writing no later than April 1 of that school year. In such a case, the Board may permit BOAKYE to take some or all unused vacation days. Otherwise, BOAKYE may either (i) carry over any unused days to the next school year only, or (ii) receive pay for such unused days at the rate of 1/240th of his then current salary." The complaint does not allege that the plaintiff ever notified the Board in writing that he was unable to use his vacation time because of his work load in a given year, or that the District ever agreed to pay him for unused time, under this provision.

With regard to sick time, the 2001 agreement provides at paragraph 11(b) that the plaintiff "shall be entitled to the same sick and personal leave provided to members of the Roosevelt Administrators Association under the current contract... through June 30, 2006." That agreement provides that payment for unused sick time may be made only to those individuals who "have at least 20 years of service with the district." The plaintiff does not allege that he had such service, and as noted above the contract began in 2001, some five years before the events that led to this law suit.

Notwithstanding the foregoing, however, the complaint alleges that on April 6, 2006 the plaintiff entered into an agreement with the defendant Ross that he would resign his position with the District, contingent upon payment of certain sums for unused vacation and sick days. ^[FN1] A letter sent to Ross by the plaintiff memorializing the alleged verbal agreement is annexed to the complaint, and indicates that the amount owed was $52,668.75 for sick days, and $81,818.75 for vacation days, which together make up the damages claimed in the complaint.By letter dated May 2, 2006, Ross wrote back concerning such agreement, in which he stated that during its meeting of April 27, 2007 the Board had accepted his resignation and agreed to the payment of accumulated sick and vacation days "to the extent such payments are approved by the State Education Department, as required by law."

That latter quoted condition has to do with the fact that by this time the District was no longer an independently run entity. In 2002, after the 2001 contract was signed but before the agreement to pay sick and vacation time was made, the Legislature had enacted a law under which the District's affairs were to be overseen by the Department of [*3]Education for a period of time that encompasses the events of the instant litigation. McKinney's Session Laws, L 2002 ch. 33.This legislation, citing, among other things, the Board's failure to exercise appropriate fiscal management, authorized the State Commissioner of Education to remove the then-existing Board, replace it with an interim Board, and to put in place several controls over certain acts of District officials. Of greatest interest here is section 4, entitled "Fiscal and educational program oversight", which at paragraph 4 provides as follows:

Prior to entering into any contract or other obligation having a projected cost of twenty-five thousand dollars or more, notwithstanding any other provision of law, rule or regulation to the contrary, the interim board of education shall submit such contract or obligation to the commissioner of education for approval, provided that the commissioner may establish a higher threshold cost for such approval. Upon review of a proposed contract or other obligation, the commissioner of education may approve the contract as submitted or reject the contract and return it to the interim board for appropriate revisions and resubmission.

The office of the Commissioner of Education did not approve the severance payment to which the Board had agreed. By letter dated May 17, 2006, and referencing the District's financial condition and the statute cited above, the Deputy Commissioner for Operations and Management Services notified Ross that authorization to pay the severance to the plaintiff was denied.

By counsel, the District notified the plaintiff's then-attorney of the denial in a letter dated May 23, 2006.

The foregoing constitutes a sufficient basis for dismissal of the first two causes of action pursuant to CPLR 3211(a)(1) and (7).

The contract was entered into prior to the 2002 State statute, but it contemplated modification by the Board in future years, and was effectively so modified by the 2002 legislation to incorporate the necessity of approval for the kind of severance arrangement at issue here. The letters cited above prove that such approval had not been forthcoming. Secondarily, the evidence submitted demonstrates that even absent the 2002 legislation there was no right to payment of sick days, and that the plaintiff had not met his own obligation to notify the District in writing of circumstances that would lead to a right to payment for unused vacation. The defendants have therefore submitted documentary proof that conclusively establishes the existence of unmet conditions for payment for unused sick and vacation days, forming a complete defense to the claim that a contract existed between the plaintiff and the District for such payment. See Kupersmith v Winged Foot Golf Club, Inc., _AD3d_, 2007 WL 926539 (2d Dept. 2007); see also, New York Community Bank v Snug Harbor Sq. Venture, 299 AD2d 329 (2d Dept. 2002).

Further, were the Court to consider the agreement alleged by the plaintiff to be new and wholly independent of the 2001 contract, the claims still fail in the face of the documentary evidence submitted. Given the statutory obligation to obtain State approval [*4]of this new District obligation, as it exceeded the $25,000 threshold for such approval, any claim was unenforceable until and unless such approval was forthcoming. As set forth above, the evidence clearly establishes that such approval was denied. Finally, the inclusion of a condition in the letter sent to the plaintiff after Board approval of the payments — i.e., that the Department of Education had to approve the agreement before it was effective — precluded the element of detrimental reliance and any claim of promissory estoppel based thereon. Prospect St. Ventures LLC v Eclipsys Solutions Corp., 23 AD3d 213 (1st Dept. 2005). This forecloses either payment or reinstatement, the alternative remedy sought in the complaint.

The claims also fail because, as pled, they do not state a claim under New York law. CPLR 3211(a)(7). This is so because they are founded solely on an agreement between the plaintiff and the District or its employees, with no mention of approval by the Commissioner of Education.As correctly pointed out by defendants, such an agreement is by its nature contrary to the statute cited above, and as such cannot be enforced by the courts. Given the important public purposes embodied in the law — a law which expressly included fiscal oversight — the alleged agreement would contravene clear public policy, and therefore cannot be enforced. See generally, Szerdahelyi v Harris, 67 NY2d 42, 48 (1986).

In view of the foregoing, the Court does not reach the defendants' additional bases for dismissal, including the argument that these claims should be dismissed for failure to timely serve a notice of claim. The Court does note, however, that the claims accrued when the Deputy Commissioner rejected payment of the severance package on May 17, 2006, which was made known to plaintiff no later than May 23, 2006. See Lenz Hardware, Inc. v Board of Educ. of Van Hornesville-Owen D. Young Cent. School Dist., 24 AD3d 1278 (4th Dept. 2005) [claim against school district accrues for purposes of action and notice of claim when payment denied].The notice of claim is dated November 3, 2006, well after the expiration of the three-month period.

The sole remaining cause of action, sounding in defamation, must be dismissed for failure to state a cause of action. Although the complaint states that Ross falsely accused him "to others" of embezzling $ 2.5 million, it fails to state the person or persons to whom the words were uttered, nor the time, place and manner of this statement, rendering the cause of action fatally deficient under CPLR 3016(a). Lesesne v Lesesne, 292 AD2d 507 (2d Dept. 2002); Siriani v Rafaloff, 284 AD2d 447 (2d Dept. 2001); Grynberg v Alexander's Inc., 133 AD2d 667 (2d Dept. 1987).

Accordingly, the complaint is dismissed in its entirety.

This shall constitute the Decision and Order of this Court.

E N T E R

DATED: April 18, 2007_____________________________ [*5]

HON. DANIEL PALMIERI

Acting Supreme Court Justice