New York Public Personnel Law: Timely appeal to the Commissioner of Education provides the pre-litigation Section 3813 Notice of Claim that must be filed with a school district

December 09, 2010

Timely appeal to the Commissioner of Education provides the pre-litigation Section 3813 Notice of Claim that must be filed with a school district

Timely appeal to the Commissioner of Education provides the pre-litigation Section 3813 Notice of Claim that must be filed with a school district
Mennella v Uniondale UFSD, Supreme Court, 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602

As a general rule, Section 3813 of the Education Law requires that in order to sue a school district the plaintiff must file a timely notice of claim if he or she plans or expects to sue the district. Such notices are usually required with respect to claims related to or involving personnel decisions.

The Mennella case, for example, concerned the termination of a probationary employee and turned on whether the court should excuse a late filing of such a claim pursuant to Section 3813(2-a) of the Education Law.

As a condition precedent to commencement of an action against a school district, Education Law §3813(1) requires that a written verified claim be delivered to the school district within three months of accrual of the claim. The Section 3813 notice must set out the nature of the claim, and the “essential facts underlying the claim.” Citing Matter of Board of Educ. v Ambach, 81 AD2d 691, the Appellate Division noted that “a petition to the Commissioner of Education can constitute the functional equivalent of a notice of claim.”

In this instance, Mennella filed a petition with the Commissioner of Education challenging the school district’s decision terminating him from employment within a week of the district’s action. The petition included allegations that the acting principal made certain statements indicative of racial discrimination. In the proceedings before the Commissioner of Education, the school district asserted that the allegations of racial discrimination were "baseless."

Accordingly, the Appellate Division concluded that Mennella’s petition to the Commissioner of Education constituted the functional equivalent of a notice of claim for the purposes of Education Law Section 3813 insofar as his going forward with litigation regarding his allegations of racial discrimination is concerned.
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