New York Public Personnel Law: Appeal to the Commissioner of Education constitutes a “functional” notice of claim required by Section 3813(1) of the Education Law

July 20, 2011

Appeal to the Commissioner of Education constitutes a “functional” notice of claim required by Section 3813(1) of the Education Law

Mennella v Uniondale UFSD, App. Div., 2nd Dept., 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602

This case arose when Vincenza Mennella attempted to obtain court approval to file a late notice of claim in order to sue the Uniondale Union Free School District to recover damages for alleged racial discrimination and “fraudulent inducement.”

Mennella was still in her first year of a three-year probationary period when the school board voted to terminate her employment as the Dean of Students at the Uniondale High School.

As a condition precedent to commencement of a legal action against a school district, Section 3813(1) of the Education Law requires that a written verified claim be presented to the governing body of the school district within three months of accrual of the claim. Such a notice of claim must provide the school district with information as to the nature of the claim, the time when, the place where, and the manner in which, the claim arose as well as the essential fact concerning the claim.

In the Mennella case, the Appellate Division decided that a petition filed with the Commissioner of Education may constitute the functional equivalent of a Section 3813(1) notice of claim.

According to the ruling, six days after the school district terminated Mennella's probationary employment, she filed a petition with the Commissioner of Education seeking review of that determination.

Mennella's petition to the Commissioner of Education 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”.

The Appellate Division said that the petition to the Commissioner of Education constituted the functional equivalent of a notice of claim with respect to the Mennella's allegations of racial discrimination.

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