BRANNIGAN v. BOARD OF EDUCATION OF LEVITTOWN UNION FREE SCHOOL DISTRICT

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

James R. BRANNIGAN, et al., appellants, v. BOARD OF EDUCATION OF LEVITTOWN UNION FREE SCHOOL DISTRICT, respondent.

Decided: May 31, 2005

HOWARD MILLER, J.P., BARRY A. COZIER, STEPHEN G. CRANE, and PETER B. SKELOS, JJ. Herbert W. North, Valley Stream, N.Y., for appellants. Ahmuty, Demers & McManus, Albertson, N.Y. (Christopher P. Cartier of counsel), for respondent.

In an action, inter alia, to recover damages for fraud and age discrimination, the plaintiffs appeal from an order of the Supreme Court, Nassau County (O'Connell, J.), entered December 19, 2003, which granted the defendant's motion for summary judgment dismissing the complaint and denied their cross motion for summary judgment.

ORDERED that the order is affirmed, with costs.

The plaintiffs are former teachers who allege, among other things, that the defendant school district committed fraud by making certain representations regarding the retirement incentive plan that the plaintiffs accepted, and by subsequently offering another retirement incentive plan to teachers with allegedly more desirable benefits.

Initially, we note that under the circumstances of this case, the Supreme Court providently exercised its discretion in entertaining the defendant's late motion for summary judgment since the defendant established good cause (see CPLR 3212[a];  Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431;  Nesbit v. Turner, 15 A.D.3d 552, 792 N.Y.S.2d 84;  Quizhpi v. Lochinvar Corp., 12 A.D.3d 252, 785 N.Y.S.2d 431;  Kunz v. Gleeson, 9 A.D.3d 480, 481, 781 N.Y.S.2d 50).

 To establish a cause of action alleging fraud, a plaintiff must demonstrate:  “(1) that the defendant made material representations that were false, (2) that the defendant knew the representations were false and made them with the intent to deceive the plaintiff, (3) that the plaintiff justifiably relied on the defendant's representations, and (4) that the plaintiff was injured as a result of the defendant's representations” (Giurdanella v. Giurdanella, 226 A.D.2d 342, 343, 640 N.Y.S.2d 211;  see Crafton Bldg. Corp. v. St. James Constr. Corp., 221 A.D.2d 407, 408, 633 N.Y.S.2d 795;  Bank of New York v. Realty Group Consultants, 186 A.D.2d 618, 588 N.Y.S.2d 602;  see also Blumberg v. Patchogue-Medford Union Free School Dist., 18 A.D.3d 486, 795 N.Y.S.2d 81).   There was no evidence establishing that the defendant represented that no other retirement incentive plan would be offered for the remainder of the existence of the current collective bargaining agreement with the knowledge that the defendant would, in fact, offer another incentive plan in the future and with the intent to deceive the plaintiffs (see Radley v. Eastman Kodak Co., 19 F.Supp.2d 89, 99-100, affd. 199 F.3d 1323).   Accordingly, the defendant established, prima facie, its entitlement to summary judgment dismissing that cause of action and, in opposition, the plaintiffs failed to raise a triable issue of fact.

 Similarly, the defendant established its entitlement to judgment as a matter of law with respect to the plaintiffs' causes of action sounding in age discrimination, pursuant to the Age Discrimination in Employment Act (29 USC § 634) (hereinafter the ADEA) and the New York State Human Rights Law (see Executive Law § 296).   The elements of an age discrimination claim under the New York State Human Rights Law and the ADEA are essentially the same and courts apply the same standards for analyzing age discrimination claims under both statutes (see Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913;  Ferrante v. American Lung Assn., 90 N.Y.2d 623, 665 N.Y.S.2d 25, 687 N.E.2d 1308;  Hardy v. General Elec. Co., 270 A.D.2d 700, 701, 705 N.Y.S.2d 97).

 First, the defendant established that the plaintiffs' age discrimination claims under the ADEA were subject to dismissal since they failed to file a claim with the Equal Employment Opportunity Commission within 300 days of the alleged discriminatory action (see Flaherty v. Metromail Corp., 235 F.3d 133, 137, n. 1).   Second, the defendant demonstrated that the challenged retirement incentive plan was voluntary, made available for a reasonable period of time, did not arbitrarily discriminate on the basis of age, and furthered the purposes of the ADEA (see Auerbach v. Board of Educ. of Harborfields Cent. School Dist., 136 F.3d 104, 112-113;  cf. Abrahamson v. Board of Educ. of Wappingers Falls Cent. School Dist., 374 F.3d 66).   In opposition, the plaintiffs failed to raise a triable issue of fact.

Accordingly, the defendant's motion for summary judgment was properly granted and the plaintiffs' cross motion for summary judgment was properly denied.

The plaintiffs' remaining contentions are without merit.

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