

Pichardo v Johnson (2015 NY Slip Op 00316)





Pichardo v Johnson


2015 NY Slip Op 00316


Decided on January 13, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on January 13, 2015

Tom, J.P., Friedman, Acosta, Saxe, Kapnick, JJ.


13945N 110799/10

[*1] Karien Pichardo, Plaintiff-Appellant,
vRobin Johnson, Defendant-Respondent, New York City Department of Education, et al., Defendants.


Ballon Stoll Bader & Nadler, P.C., New York (Evan E. Richards of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Marta Ross of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 29, 2013, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion to amend the complaint, and sua sponte dismissed the complaint as against defendant Robin Johnson, unanimously modified, on the law, the complaint reinstated as against defendant Johnson, and otherwise affirmed, without costs
The court properly denied the motion for leave to amend the complaint because the proposed amendment was lacking in merit (see e.g. Sharon Ava & Co. v Olympic Tower Assoc., 259 AD2d 315 [1st Dept 1999]). Plaintiff sought to assert claims against defendant Johnson in her individual capacity, but none of the allegations establish that Johnson acted outside the scope of her employment.
Johnson did not move to dismiss the claims against her in her official capacity as principal of the school where plaintiff was a probationary teacher and the court should not have dismissed them sua sponte (see e.g. Purvi Enters., LLC v City of New York, 62 AD3d 508, 509 [1st Dept 2009]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 13, 2015
CLERK


