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the extent that it was not withdrawn by plaintiff,” but noted that "[t]he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.
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.
** 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:
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00840.htm
