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Wednesday, February 13, 2013

The timely filing of a “notice of claim” may be a condition precedent when suing the individual’s public employer

A timely filing of a “notice of claim” may be a condition precedent when suing the individual’s public employer

This action involved a claim of “fraudulent inducement” wherein the employee claimed that she was “induced … to accept a promotion” that resulted in her loss of union protection and other benefits as well as the imposition of a one-year probationary period.

When the employee was terminated from the new position prior to the end of the probationary period, she filed a petition alleging “fraudulent inducement.”* Supreme Court dismissed this allegation, holding that the notice of claim that had been filed pursuant to General Municipal Law §50-e was untimely.

The Appellate disagreed with this result, explaining that “An action based upon fraud accrues for purposes of General Municipal Law §50-e when the fraudulent act is committed or when ‘the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it,’ whichever occurs later,” citing CPLR §213[8].  Otherwise, said the Appellate Division, municipalities would have an incentive to conceal the damages and, or, injuries stemming from a fraudulent act until the 90-day period under §50-e had passed, leaving potential plaintiffs with no recourse aside from an application for leave to serve a late notice of claim.

In this instance, said the court, the petitioner was unable to assert a cause of action for fraudulent inducement until she sustained damages resulting from the fraud, i.e., when she was terminated from her new position during its probationary period. She did, however, timely served her notice of claim within 90 days of her termination.

The court, however, agreed Cayuga’s alternative ground for affirmance of the Supreme Court’s ruling -- the complaint should have been dismissed because plaintiff failed to plead with sufficient particularity the facts underlying her fraudulent inducement claim as required by CPLR 3016(b).

As the plaintiff had, in fact, failed to satisfy the requirements of CPLR 3016(b), the Appellate Division held that Supreme Court “properly dismissed the complaint to the extent that it was not withdrawn by plaintiff,” but noted that "[t]he dismissal . . . [was] without prejudice to an application by plaintiff to Supreme Court for leave to serve an amended complaint with regard to th[e] cause of action [for fraudulent inducement]."

In contrast, a notice of claim pursuant to Education Law §3813(1) is not a condition precedent to an Article 78 proceeding seeking to vindicate a public interest [Matter of Cayuga-Onondaga Counties Bd. of Coop. Educ. Servs., 89 NY2d 395]. As it is well settled that the tenure rights of teachers are a matter of public interest, the notice of claim provisions of Education Law §3813(1) are not applicable to cases seeking to enforce such [Sephton v Board of Educ. of City School Dist. of City of New York, 99 AD2d 509, 510 (2d Dept), appeal denied 62 NY2d 605].

Another aspect of summary termination to consider: in a disciplinary action typically an aggrieved party has a statutory** or Taylor Law contract right to appeal an adverse determination by the appointing authority or an arbitrator or arbitration panel.

A temporary or provisional employee or probationary employee*** who has completed his or her minimum period of probation does not have a statutory right to appeal his or her termination except where he or she alleges the dismissal was in violation of his or her constitutional rights or was unlawfully discriminatory. 

* The plaintiff had withdrawn other causes of action, maintaining only the claim alleging fraudulent inducement.”

** See, for example, §76 of the Civil Service Law and §3202-a.5 of the Education Law. Appeals under §76 may be appealed to the responsible civil service commission [within 30-days of the decision] or as provided by Article 78 of the CPLR while §3202-a.5 appeals are to filed pursuant to Article 75 of the CPLR but must be filed within 10 days of the determination of the arbitrator or the arbitration panel.

*** In some instances a probationary employee may have a contractual right to challenge his or her termination as set out in a Taylor Law agreement.

The decision is posted on the Internet at:

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on:

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on


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