New York Public Personnel Law: Filing a notice of claim

October 04, 2011

Filing a notice of claim

Filing a notice of claim
Sangermano v BOCES of Nassau County, 290 AD2nd 498

Section 3813(1) of the Education Law requires that an individual who plans to sue a school district or a BOCES file a timely notice of claim with the entity he or she seeks to sue prior to initiating his or her lawsuit. Does this requirement apply to complaints alleging a violation of a human rights law?

Former Nassau County BOCES employee Michael Sangermano learned that sometimes the answer is yes, sometimes it is no, depending on the nature of the claim.

Sangermano sued the BOCES in an effort to recover damages for what he alleged constituted employment discrimination in violation of Executive Law Section 296, and violations of his right to due process pursuant to 42 USC 1983.

The Appellate Division said that the Supreme Court correctly granted BOCES' motion to dismiss Sangermano's claims alleging that the BOCES violated the Executive Law because he failed to file a timely Section 3813(1) notice of claim.

These claims alleged that Sangermano suffered constructive termination as a result of racial discrimination by the BOCES in violation of Section 296 of the Executive Law.

Citing Mills v County of Monroe, 59 NY2d 307, the Appellate Division deposed of this aspect of Sangermano's lawsuit when it held that:

Where a plaintiff seeks private relief, damages, or reinstatement for employment discrimination in violation of the Executive Law, the filing of a timely notice of claim is a condition precedent to [his or her filing] suit.

Sangermano's second claim alleging that he was forced to resign from his employment without having been afforded the "procedural safeguards and a right to be heard prior to termination" as guaranteed by a federal civil rights law, 42 USC1983, survived notwithstanding the fact that he had not filed a Section 3813(1) claim with the BOCES.

The court said that such a notice of claim requirement is inapplicable to claims filed pursuant to 42 USC 1983.

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.