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June 21, 2012

Filing a statutory notice of claim: efforts by an individual to vindicate a personal interest and efforts to vindicate a public interest distinguished

Filing a statutory notice of claim: efforts by an individual to vindicate a personal interest and efforts to vindicate a public interest distinguished
Palmer v Niagara Frontier Transp. Auth., 56 AD3d 1245

A former employee sued the Niagara Frontier Transportation Authority alleging that the Authority terminated his employment in retaliation for his having advised the Authority’s employees and agents of alleged safety violations at his work site.

The Appellate Division ruled that Supreme Court properly granted the Authority’s motion for summary judgment to dismiss individual’s complaint.

The former employee had contended that the Authority had violated Civil Service Law §75-b, the “Whistle Blower Law." However, said the court, in this instance the individual sought only to vindicate his “individual interests," and he had not filed a notice of claim as mandated by Public Authorities Law §1299-p(1) before initiating his law suit. This, explained the court, was a fatal omission on the part of the individual.

With respect to the applicability of the three-month notice of claim requirement of Education Law 3813(1) to statutory or nonjudicial proceedings involving school districts, school boards and boards of cooperative educational services, as well as parallel notice of claim requirements when such proceedings involve other municipal units of government, New York’s courts have distinguished between proceedings which concern an individual’s personal interest [see, for example, Doyle v. Board of Education of Deer Park Union Free School District, 230 A.D.2d 820, a case involving a claim of lost retirement benefits] and those involving an individual seeking to vindicate a public interest (see, for example, Union Free School District No. 6 of Towns of Islip & Smithtown v New York State Division of Human Rights Appeal Board, 35 NY2d 371, at 380, motion to reargue denied 36 NY2d 807).

The general rule: statutes requiring the filing of a notice of claim as a condition precedent to initiating litigation are applicable in actions involving “only a personal interest” but not in actions involving an effort to vindicate a “public interest.”

There as some exceptions to this general rule, however.

PERB, relying on the Court of Appeals ruling in Freudenthal v. Nassau County, 99 NY2d 285, that claims filed with the NY State Division of Human Rights, an administrative agency, do not require the filing of a Notice of Claim pursuant to Education Law Section 3813, has ruled that such notice is not required with respect to improper practice charges filed with it.

Similarly, the Commissioner of Education has held that Section 3813 does not apply to appeals brought under Section 310 of the Education Law [Appeals of Bodnar and DeGiglio, 1990 Opinions of the Commissioner of Education, 12369] while in Mennella v Uniondale UFSD, 287 A.D.2d 636, 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.

In Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore Section 3813 is not applicable to cases seeking to enforce such rights."

Addressing another aspect of the former employee’s petition, the Appellate Division ruled that his cause of action “is not viable because Civil Service Law §75-b(2)(a)(i) prohibits a public employer from … terminating a public employee based on the employee's disclosure of the ‘violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety’ [and the Authority] established as a matter of law that the safety concerns raised by [former employee] did not present such a danger, and [the individual] failed to raise an issue of fact.”

The full text of the decision is posted on the Internet at:

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