Preview
INDEX NO. E2023008149
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/10/2023
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3633566
Book Page CIVIL
Return To: No. Pages: 7
KARLEE SUZANNE BOLANOS
Instrument: AFFIRMATION IN OPPOSITION
Control #: 202311130246
Index #: E2023008149
Date: 11/13/2023
Schmitt, Audra Time: 9:16:30 AM
Livonia Central School District
Lonneville, Jeremy
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING — THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO.
MONROE COUNTY CLERK
MIO
lof 7
tf30 MONRO OUN kK DIV IND&&& NOE 2623028008 149
06 06
NYSCEF BOC. NO. 18 RECEIVED NYSCEF: 11/10/2023
STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
AUDRA SCHMITT,
AFFIDAVIT
Plaintiff,
-against- Index No. E2023008149
Hon. Daniel J. Doyle
LIVONIA CENTRAL SCHOOL DISTRICT and
JEREMY LONNEVILLE,
as the Superintendent of Schools of the
Livonia Central School District,
Defendants.
STATE OF NEW YORK )
COUNTY OF MONROE ) ss:
AUDRA SCHMITT, being duly sworn, deposes and says:
1 J am the former Principal for the Livonia Central School District (“District”) and
the Plaintiff in this action. | offer this Affidavit in opposition to a Motion to Dismiss brought by
the District and District’s current superintendent of Schools, Jeremy Lonneville (“Lonneville”),
collectively, the Defendants in this action.
2 I submit this Affidavit on the basis of my own knowledge of and familiarity with
the facts and circumstances described herein.
3 I retired as the District’s Principal on April 20, 2022.
4 As stated in my Verified Complaint submitted to this Court on July 25, 2023
(“Complaint”), I am suffering monthly monetary loss due to the Defendants’ refusal to honor its
commitment set forth in the Settlement Agreement (the “Agreement”) entered between the parties
on May 19, 2020. (A copy of this agreement was appended to the Complaint as Exhibit 1).
2 0f 7
MONRO OUN kK DIV INDEXNG E 2823008068 149
Y6:06
NYSCEF BOC. NO. 18 RECEIVED NYSCEF: 11/10/2023
5 The Agreement came about after I reported conduct of the District's then-
Superintendent of Schools Matt Cole (""Cole")—1o the District's Board of Education ("Board") on
April 17, 2020. Once I notified the Board, the Board and I entered into the Agreement and as part
of the contract I agreed to sever my employment with the District after I became eligible for
retirement on April 20, 2022. At the time of this complaint to the Board and the resultant
Agreement, I was on an approved leave of absence, and I understood that I was continually on an
approved medical leave of absence until my retirement date.
6 Notably, the Agreement contained work restrictions which required me not to work
in public employment from the date of the Agreement until my retirement date—this prohibition
was only necessary because I was being paid a salary and was deemed to be working (though on
sick leave) for the District during this period. If I were not working for the District in the months
leading up to my retirement, like Defendants state in their Motion to Dismiss, this provision would
have been unnecessary. Discovery is needed regarding this provision and the intent of this and
other provisions of the Agreement.
7 Honoring my commitments set forth in the Agreement, I did not work for any
school district other than the District during the period May 19, 2020 through April 20, 2022, and
I retired from the District effective April 20, 2022.
8 After I retired, for several months, | initially received my full pension from the New
York State Teachers’ Retirement System (“NYSTRS”).
9 Via letter dated July 26, 2022, I was contacted by the NYSTRS indicating that it
had reviewed the Agreement and had determined to reduce my pensionable time allowed for the
period that I was on a medical leave of absence prior to my retirement.
3 0f 7
MONRO OUN NK Y6:06 DM INDEXNG E 2823008068 149
NYSCEF BOC. NO. 18 RECEIVED NYSCEF: 11/10/2023
10. Discovery will reveal, and my pleadings already substantiate, that the District was
unwilling or unable to pay me a full lump sum separation payment, and instead subsidized its cost
of a settlement (based on my demand and the value of my claim as advised by counsel) by allowing
me to continue working until I was first eligible to retire and collect my full pension. The settlement
cost would have been much higher if I was unemployed two years prior to my retirement date as I
would have demanded full payment for a reduced pension. Discovery will reveal the discussions
regarding the economics of the Agreement.
11. I should not have been forced to retire two years earlier than my first eligible
retirement date after a long and distinguished career, due to the improper behavior of the
Superintendent. I would not have retired, even at age 55, but for the behavior of the
Superintendent. I was mostly satisfied with the long-term payment arrangement that the District
wanted; however, I would not have been satisfied with the consideration if I believed that either I
would be denied a full pension or that the District would not make up the loss if 1 were denied the
full pension. Discovery will reveal the intentions and the issues discussed by the parties in entering
into the Agreement.
12. I would not have signed the Agreement but for the District’s agreement to make me
whole if any government agency determined that the payment arrangement was not allowable.
13. For these reasons, ] am seeking discovery and ultimately compensation from the
District and/or Lonneville to make me whole for my loss in pension payments due to the
diminution of my pension payments because of the District’s voluntary submission of the
Agreement and Lonneville’s communications with NYSTRS regarding the Agreement. All of the
evidence must be produced by the District and testimony must be sworn at depositions to get to
4o0f 7
MONRO OUN kK DIV INDEXNG E 2823008068 149
Y6:06
NYSCEF BOC. NO. 18 RECEIVED NYSCEF: 11/10/2023
the bottom of what occurred and how I was injured by the District’s breach of contract/unlawful
action with respect to my pension credit.
14. Discovery will reveal that the attorneys specifically discussed the possibility of my
retirement being disapproved, and paragraph 3c, 3d, 3i, and 3n are examples of provisions that
were put in place to make sure I received my full pension or be credited by the District if my full
service credit was denied by NYSTRS. Analysis of these provisions and their meaning and intent
regarding facts that will be adduced during this litigation.
15. Discovery will reveal that contrary to the assertions in Defendants Motion to
Dismiss, Defendants did not have an obligation to send the Agreement to the Retirement System.
These statements set forth in the Affidavits are false. But for Lonneville’s voluntary act in
submitting my Agreement to NYSTRS, and his other voluntarily communications and statements
made about my employment to NYSTRS, my pension would not have been reduced. For example,
it is believed that Lonneville made statements to NYSTRS that run afoul of, as one example,
Paragraph 31 of the Agreement, which provides: “Until and through April 20, 2022, Ms. Schmitt’s
employment status shall reflect active employment as an administrator on special assignment.”
Discovery will reveal this and other information. Discovery may reveal that Lonneville personally
and recklessly, in violation of the Agreement, caused the current economic damages that I am
suffering. This damage, if not remedied, will continue each month for the remainder of my life.
The pension reallocation alone causes me an immediate loss of $1800.00 per month. Of course,
Defendants would like to shut the litigation down prematurely, in its infancy, to avoid such
exposure.
16. I simply want to be made whole for my monthly loss of income, which could have
been avoided, but for Lonneville’s actions. I have a legal right to enforce the Agreement.
5 of 7
MONRO OUN kK DIV INDEXNG E 2823008068 149
Y6:06
NYSCEF BOC. NO. 18 RECEIVED NYSCEF: 11/10/2023
17. Discovery may also reveal that I was treated differently than other similarly situated
retirees with separation agreements.
18. Defendants have a contractual obligation to make me whole for reduction to my
pension by NYSTRS.
19. Defendants have denied me the full benefit of the bargain I made with the District,
and I should have the right to discovery on my claims.
20. I have tried to access information from the District via the Freedom of Information
law, but the District has not been forthcoming with documents. My FOIL submissions from over
a year ago still have not been answered by the District, in bold violation of the New York Public
Officers Law.
21. The conclusory assertions made by Defendants and their counsel in the Motion to
Dismiss via affidavits and attachments, are insufficient to warrant approval of a Motion to Dismiss.
In fact, the statements in my pleadings must be read as true at this stage of the litigation. My
pleadings adequately allege assertions of breach of contract and the implied covenant of good faith
and fair dealing, and prima facie tort.
22. The Defendants threaten that 1 breached the Agreement and assert entitlement to
damages against me. This is further retaliation and a grotesque attempt to intimidate me to drop
this litigation. Paragraph 5b of the Agreement clearly states that claims that arise after the date the
Agreement was signed are not released. This breach of contract occurred once I made the demand
for recoupment of my pension loss to the District and the District refused to pay me for my losses.
This occurred during discussions taking place beginning around September 2022 through January
2023.
6 of 7
MONRO OUN kK DIV INDEEXNG E 282308068 149
Y6:06
NYSCEF BOC. NO. 18 RECEIVED NYSCEF: 11/10/2023
23. Moreover, Paragraph 6 of the Agreement states that I may bring claims to “enforce
the terms of this Agreement.”
24. Although Defendants raise my Article 78 to the NYSTRS as an example of my
breaching the Agreement, if I had received relief from NYSTRS, I would not have needed to seek
relief from the District. Surely, Defendants would have alleged that I did not exhaust my remedies
or mitigate my damages under this Agreement if I had not appealed NYSTRS’s determination.
Defendants cannot have it both ways, nor can they effectively erase my right to enforce the
Agreement by way of a Motion to Dismiss that includes a threat against me for damages.
25. I respectfully request that this Court deny Defendants attempt to deny me the right
to my day in Court or consider their Motion to Dismiss as one for Summary Judgment. I believe
that discovery is essential in this action.
26. The above facts form the basis for my belief that the District has harmed me
including by ending my employment too early and costing me my pension and monthly economic
loss by its failure to adhere to the terms of the Agreement. All of the District’s conduct toward me
is because I am a whistleblower—because | raised legitimate concerns about discriminatory
treatment at the hands of District officials. Defendants motion should be denied.
CaduDbiut
AUDRA SCHMITT
Sworn to before me this
10" day of November 2023.
Notary Public
4887-7182-4272, v. 1
REBECCA E. ZELAZNY
NOTARY PUBLIC, State of New York
Qualified in Monroe Coun ty
Registration No. 01 ZE63757' ‘96+
Commission Expires May 29, 20. Le
7 of 7
Preview
INDEX NO. E2023008149 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/10/2023 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3633566 Book Page CIVIL Return To: No. Pages: 7 KARLEE SUZANNE BOLANOS Instrument: AFFIRMATION IN OPPOSITION Control #: 202311130246 Index #: E2023008149 Date: 11/13/2023 Schmitt, Audra Time: 9:16:30 AM Livonia Central School District Lonneville, Jeremy Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING — THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO. MONROE COUNTY CLERK MIO lof 7 tf30 MONRO OUN kK DIV IND&&& NOE 2623028008 149 06 06 NYSCEF BOC. NO. 18 RECEIVED NYSCEF: 11/10/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE AUDRA SCHMITT, AFFIDAVIT Plaintiff, -against- Index No. E2023008149 Hon. Daniel J. Doyle LIVONIA CENTRAL SCHOOL DISTRICT and JEREMY LONNEVILLE, as the Superintendent of Schools of the Livonia Central School District, Defendants. STATE OF NEW YORK ) COUNTY OF MONROE ) ss: AUDRA SCHMITT, being duly sworn, deposes and says: 1 J am the former Principal for the Livonia Central School District (“District”) and the Plaintiff in this action. | offer this Affidavit in opposition to a Motion to Dismiss brought by the District and District’s current superintendent of Schools, Jeremy Lonneville (“Lonneville”), collectively, the Defendants in this action. 2 I submit this Affidavit on the basis of my own knowledge of and familiarity with the facts and circumstances described herein. 3 I retired as the District’s Principal on April 20, 2022. 4 As stated in my Verified Complaint submitted to this Court on July 25, 2023 (“Complaint”), I am suffering monthly monetary loss due to the Defendants’ refusal to honor its commitment set forth in the Settlement Agreement (the “Agreement”) entered between the parties on May 19, 2020. (A copy of this agreement was appended to the Complaint as Exhibit 1). 2 0f 7 MONRO OUN kK DIV INDEXNG E 2823008068 149 Y6:06 NYSCEF BOC. NO. 18 RECEIVED NYSCEF: 11/10/2023 5 The Agreement came about after I reported conduct of the District's then- Superintendent of Schools Matt Cole (""Cole")—1o the District's Board of Education ("Board") on April 17, 2020. Once I notified the Board, the Board and I entered into the Agreement and as part of the contract I agreed to sever my employment with the District after I became eligible for retirement on April 20, 2022. At the time of this complaint to the Board and the resultant Agreement, I was on an approved leave of absence, and I understood that I was continually on an approved medical leave of absence until my retirement date. 6 Notably, the Agreement contained work restrictions which required me not to work in public employment from the date of the Agreement until my retirement date—this prohibition was only necessary because I was being paid a salary and was deemed to be working (though on sick leave) for the District during this period. If I were not working for the District in the months leading up to my retirement, like Defendants state in their Motion to Dismiss, this provision would have been unnecessary. Discovery is needed regarding this provision and the intent of this and other provisions of the Agreement. 7 Honoring my commitments set forth in the Agreement, I did not work for any school district other than the District during the period May 19, 2020 through April 20, 2022, and I retired from the District effective April 20, 2022. 8 After I retired, for several months, | initially received my full pension from the New York State Teachers’ Retirement System (“NYSTRS”). 9 Via letter dated July 26, 2022, I was contacted by the NYSTRS indicating that it had reviewed the Agreement and had determined to reduce my pensionable time allowed for the period that I was on a medical leave of absence prior to my retirement. 3 0f 7 MONRO OUN NK Y6:06 DM INDEXNG E 2823008068 149 NYSCEF BOC. NO. 18 RECEIVED NYSCEF: 11/10/2023 10. Discovery will reveal, and my pleadings already substantiate, that the District was unwilling or unable to pay me a full lump sum separation payment, and instead subsidized its cost of a settlement (based on my demand and the value of my claim as advised by counsel) by allowing me to continue working until I was first eligible to retire and collect my full pension. The settlement cost would have been much higher if I was unemployed two years prior to my retirement date as I would have demanded full payment for a reduced pension. Discovery will reveal the discussions regarding the economics of the Agreement. 11. I should not have been forced to retire two years earlier than my first eligible retirement date after a long and distinguished career, due to the improper behavior of the Superintendent. I would not have retired, even at age 55, but for the behavior of the Superintendent. I was mostly satisfied with the long-term payment arrangement that the District wanted; however, I would not have been satisfied with the consideration if I believed that either I would be denied a full pension or that the District would not make up the loss if 1 were denied the full pension. Discovery will reveal the intentions and the issues discussed by the parties in entering into the Agreement. 12. I would not have signed the Agreement but for the District’s agreement to make me whole if any government agency determined that the payment arrangement was not allowable. 13. For these reasons, ] am seeking discovery and ultimately compensation from the District and/or Lonneville to make me whole for my loss in pension payments due to the diminution of my pension payments because of the District’s voluntary submission of the Agreement and Lonneville’s communications with NYSTRS regarding the Agreement. All of the evidence must be produced by the District and testimony must be sworn at depositions to get to 4o0f 7 MONRO OUN kK DIV INDEXNG E 2823008068 149 Y6:06 NYSCEF BOC. NO. 18 RECEIVED NYSCEF: 11/10/2023 the bottom of what occurred and how I was injured by the District’s breach of contract/unlawful action with respect to my pension credit. 14. Discovery will reveal that the attorneys specifically discussed the possibility of my retirement being disapproved, and paragraph 3c, 3d, 3i, and 3n are examples of provisions that were put in place to make sure I received my full pension or be credited by the District if my full service credit was denied by NYSTRS. Analysis of these provisions and their meaning and intent regarding facts that will be adduced during this litigation. 15. Discovery will reveal that contrary to the assertions in Defendants Motion to Dismiss, Defendants did not have an obligation to send the Agreement to the Retirement System. These statements set forth in the Affidavits are false. But for Lonneville’s voluntary act in submitting my Agreement to NYSTRS, and his other voluntarily communications and statements made about my employment to NYSTRS, my pension would not have been reduced. For example, it is believed that Lonneville made statements to NYSTRS that run afoul of, as one example, Paragraph 31 of the Agreement, which provides: “Until and through April 20, 2022, Ms. Schmitt’s employment status shall reflect active employment as an administrator on special assignment.” Discovery will reveal this and other information. Discovery may reveal that Lonneville personally and recklessly, in violation of the Agreement, caused the current economic damages that I am suffering. This damage, if not remedied, will continue each month for the remainder of my life. The pension reallocation alone causes me an immediate loss of $1800.00 per month. Of course, Defendants would like to shut the litigation down prematurely, in its infancy, to avoid such exposure. 16. I simply want to be made whole for my monthly loss of income, which could have been avoided, but for Lonneville’s actions. I have a legal right to enforce the Agreement. 5 of 7 MONRO OUN kK DIV INDEXNG E 2823008068 149 Y6:06 NYSCEF BOC. NO. 18 RECEIVED NYSCEF: 11/10/2023 17. Discovery may also reveal that I was treated differently than other similarly situated retirees with separation agreements. 18. Defendants have a contractual obligation to make me whole for reduction to my pension by NYSTRS. 19. Defendants have denied me the full benefit of the bargain I made with the District, and I should have the right to discovery on my claims. 20. I have tried to access information from the District via the Freedom of Information law, but the District has not been forthcoming with documents. My FOIL submissions from over a year ago still have not been answered by the District, in bold violation of the New York Public Officers Law. 21. The conclusory assertions made by Defendants and their counsel in the Motion to Dismiss via affidavits and attachments, are insufficient to warrant approval of a Motion to Dismiss. In fact, the statements in my pleadings must be read as true at this stage of the litigation. My pleadings adequately allege assertions of breach of contract and the implied covenant of good faith and fair dealing, and prima facie tort. 22. The Defendants threaten that 1 breached the Agreement and assert entitlement to damages against me. This is further retaliation and a grotesque attempt to intimidate me to drop this litigation. Paragraph 5b of the Agreement clearly states that claims that arise after the date the Agreement was signed are not released. This breach of contract occurred once I made the demand for recoupment of my pension loss to the District and the District refused to pay me for my losses. This occurred during discussions taking place beginning around September 2022 through January 2023. 6 of 7 MONRO OUN kK DIV INDEEXNG E 282308068 149 Y6:06 NYSCEF BOC. NO. 18 RECEIVED NYSCEF: 11/10/2023 23. Moreover, Paragraph 6 of the Agreement states that I may bring claims to “enforce the terms of this Agreement.” 24. Although Defendants raise my Article 78 to the NYSTRS as an example of my breaching the Agreement, if I had received relief from NYSTRS, I would not have needed to seek relief from the District. Surely, Defendants would have alleged that I did not exhaust my remedies or mitigate my damages under this Agreement if I had not appealed NYSTRS’s determination. Defendants cannot have it both ways, nor can they effectively erase my right to enforce the Agreement by way of a Motion to Dismiss that includes a threat against me for damages. 25. I respectfully request that this Court deny Defendants attempt to deny me the right to my day in Court or consider their Motion to Dismiss as one for Summary Judgment. I believe that discovery is essential in this action. 26. The above facts form the basis for my belief that the District has harmed me including by ending my employment too early and costing me my pension and monthly economic loss by its failure to adhere to the terms of the Agreement. All of the District’s conduct toward me is because I am a whistleblower—because | raised legitimate concerns about discriminatory treatment at the hands of District officials. Defendants motion should be denied. CaduDbiut AUDRA SCHMITT Sworn to before me this 10" day of November 2023. Notary Public 4887-7182-4272, v. 1 REBECCA E. ZELAZNY NOTARY PUBLIC, State of New York Qualified in Monroe Coun ty Registration No. 01 ZE63757' ‘96+ Commission Expires May 29, 20. Le 7 of 7