        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

376
CA 16-01396
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


DONALD GOOLEY, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BOARD OF EDUCATION AND TOWN OF WEBB UNION
FREE SCHOOL DISTRICT, DEFENDANTS-APPELLANTS.


THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (CHRISTOPHER M.
MILITELLO OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

O’HARA, O’CONNELL & CIOTOLI, FAYETTEVILLE (STEPHEN CIOTOLI OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Herkimer County
(Norman I. Siegel, J.), entered April 29, 2016. The order denied
defendants’ motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff, the former Superintendent of Schools of
defendant Town of Webb Union Free School District (District),
commenced this breach of contract action seeking damages for the
alleged breach of an agreement whereby defendants agreed to pay him
$22,000 “as compensation for making himself available ‘to assist the
new Superintendent in the development of the 2012-2013 school budget
and such other duties as may be reasonably required to assist in the
training and transition of the new Superintendent.’ ” It is
undisputed that, prior to his retirement on January 31, 2012,
plaintiff destroyed a large number of documents that were kept in the
Superintendent’s office. Defendant Board of Education (Board) advised
plaintiff by letter that it determined that the removal of the
documents constituted a breach of the agreement and canceled the
District’s obligation under the agreement to issue payments to
plaintiff. Defendants moved for summary judgment dismissing the
amended complaint and for judgment on their counterclaim, for
conversion. We conclude that defendants failed to meet their initial
burden (see generally Zuckerman v City of New York, 49 NY2d 557, 562),
and thus Supreme Court properly denied the motion.

     Defendants supported their motion with, inter alia, plaintiff’s
deposition testimony that he was at all times “ready, willing and
able” to assist the District and the new Superintendent but was never
called upon to do so. Plaintiff testified that “at least 50%” of the
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                                                         CA 16-01396

documents destroyed were personal documents accumulated over his 52-
year career and, otherwise, they were documents that he considered to
be his copies of documents that existed in other parts of the
District, either as hard copies or in electronic format. Defendants
also submitted the deposition testimony of the newly-hired
superintendent (new superintendent), who testified that he called
plaintiff with respect to the discarded documents and that police
officials and Board members were present during the call. The new
superintendent interpreted plaintiff’s responses to his inquiries
regarding the discarded documents as a “threat,” and he did not again
contact plaintiff. Defendants also submitted the deposition testimony
of a District employee who testified that he observed a personnel file
in the documents removed from plaintiff’s office.

     Viewing defendants’ submissions in the light most favorable to
plaintiff, as we must, we conclude that defendants failed “ ‘to
demonstrate the absence of any material issues of fact’ ” whether
plaintiff’s actions constituted a repudiation of the contract (Vega v
Restani Constr. Corp., 18 NY3d 499, 503, quoting Alvarez v Prospect
Hosp., 68 NY2d 320, 324), i.e., whether plaintiff’s actions
“constitute[d] an unequivocal and overt communication of intention not
to perform agreed-upon obligations” (Coniber v Center Point Transfer
Sta., Inc., 137 AD3d 1604, 1605 [internal quotation marks omitted]).
We likewise conclude that defendants failed to establish their
entitlement to judgment on their counterclaim, alleging conversion
(see generally Vega, 18 NY3d at 503). Defendants contend for the
first time on appeal that plaintiff forfeited his claim under the
agreement because he owed a duty of fidelity to defendants and was
“faithless in the performance of his services” (Feiger v Iral Jewelry,
41 NY2d 928, 928), and thus that contention is not properly before us
(see Ciesinski v Town of Aurora, 202 AD2d 984, 985).




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
