Levert v. Central School District No. 6 , 204 N.Y.S.2d 5 ( 1960 )

Mario Pittont, J.

Motion for leave to serve a supplemental answer denied.

Ordinarily the merits of the proposed pleading are not considered on a motion of this type, but where it clearly appears that the amendment is without merit permission to amend will be denied (see Brancato v. Ambrosio, 8 Misc 2d 735; Hasen v. Apsel, 17 Misc 2d 858). Here, the defendant in the proposed supplemental answer intends to plead as a bar to the action the failure to comply with the requirement of section 3813 of the Education Law that a written verified claim he submitted before an action may be commenced. But it is obvious that the requirements of section 3813 do not apply to an action for a declaratory judgment respecting the alleged continuous violation by the defendant of section 1805 of the Education Law. As subdivision 1 of section 3813 reveals, it is claims which the school district or board of education has the power u to adjust or to pay ” that must be filed. (See Matter of Randall v. Hoff, 4 Misc 2d 376; cf. Grant v. Town of Kirkland, 10 A D 2d 474.) Settlement of the present controversy may not be made by payment.