WANNER v. CORNING PAINTED POST AREA SCHOOL DISTRICT (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

Janice WANNER, Respondent, v. CORNING-PAINTED POST AREA SCHOOL DISTRICT, Appellant.

Decided: February 10, 1999

PRESENT: GREEN, J.P., PINE, WISNER, CALLAHAN and BALIO, JJ.

Sayles, Evans, Brayton, Palmer, Alan Hamilton, Elmira, for Defendant-Appellant. Urbanski & Flynn, Elmira, for Plaintiff-Respondent.

Supreme Court properly refused to dismiss the complaint in its entirety. Defendant failed to meet its burden on its motion for summary judgment of establishing as a matter of law that plaintiff, a former guidance counselor, is not entitled to compensation for working 20.5 days beyond the work year as defined in the collective bargaining agreement (see, Furman v. Watchman, 229 A.D.2d 358, 358-359, 645 N.Y.S.2d 788; Moors v. Hall, 143 A.D.2d 336, 338, 532 N.Y.S.2d 412).

We modify the order, however, by granting that part of the motion seeking dismissal of plaintiff's claim for punitive damages. Defendant's alleged “willful, intentional and malicious” refusal to abide by the terms of the agreement does not support an award of punitive damages (see, Estate of Roth v. Erhal Holding Corp., 141 A.D.2d 693, 695-696, 529 N.Y.S.2d 815).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM:

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