McCullough v. Board of Education of Ramapo Central School District No. 2 , 204 N.Y.S.2d 555 ( 1960 )

In an action to recover damages for breach of contract, plaintiffs appeal: (1) from an order of the Supreme Court, Rockland County, entered December 14, 1959, granting defendant’s motion for judgment on the pleadings, pursuant to rule 112 of the Rules of Civil Practice, and denying plaintiffs’ cross motion for leave to present, nunc pro tunc, a verified claim pursuant to section 3813 of the Education Law and for leave to, amend the complaint so as to allege the fact of such presentation of claim; and (2) from the judgment of said court, entered December 28, 1959, in favor of defendant in accordance with said order. Order and judgment reversed, without costs; defendant’s motion denied; and plaintiffs’ cross motion granted, with leave to plaintiffs to allege, inter alia, in their amended complaint, the facts which they claim constitute waiver and estoppel as to the defects in the notice of claim; and with leave to plaintiffs to serve their amended complaint within 20 days after the service of the order to be made hereon, together with notice of its entry. The court has power to permit the claim to be amended by supplying the omitted verification thereof (Boutelle V. Central School Dist. No. 1, 2 AD 2d 925). Under the circumstances disclosed in the record, permission thus to amend the claim should have been granted. Plaintiffs also should be given an opportunity to allege the facts which they urge constitute waiver or estoppel, or both, with respect to any defect or defects in the paper they claim constitutes their notice of claim (cf. Teresta V. City of New York, 304 N. Y. 440; Matter of Cavagnol v. Town of Orangetown, 17 Mise. 2d 943, 945; Matter of McKiernan v. Board of Educ., 1 Mise 2d 925, 927). We do not pass on the question of whether the facts set forth in this record would constitute a valid waiver or estoppel. Nolan, P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.