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February 18, 2014

Filing a timely “Notice of claim” pursuant to Education Law §3813(1) held a condition precedent to maintaining an action seeking damages


Filing a timely “Notice of claim” pursuant to Education Law §3813(1) helf a condition precedent to maintaining an action seeking damages
2014 NY Slip Op 01007, Appellate Division, Second Department

Challenging the School Board's decision denying a probationary teacher [Teacher] tenure and terminating her employment, Teacher filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Board's determination on the ground that it was arbitrary and capricious and sought reinstatement to her former position with tenure and back pay.

Supreme Court directed the Board to reinstate Teacher with back pay pending a hearing to determine “whether [Teacher] was denied tenure and terminated from her position as a probationary teacher in bad faith.”

The Board appealed and among its affirmative defenses it argued that Teacher “had failed to serve a notice of claim within three months after her claim arose as required by Education Law §3813(1).” The Appellate Division agreed and reversed the lower court’s ruling on the law. The Appellate Division explained that Teacher was, indeed, required, pursuant to Education Law §3813(1), to serve a timely notice of claim.*

The court distinguished Teacher’s claim from one where a litigant seeks only equitable relief or commences a proceeding to vindicate a public interest. Here, said the Appellate Division, Teacher sought damages in the form of back pay as well as equitable relief and had not commenced this proceeding to vindicate a public interest.

The court also noted that although a litigant seeking "judicial enforcement of a legal right derived through enactment of positive law" is exempt from the §3813(1) notice of claim requirement, that exemption is inapplicable here and Teacher’s service of a notice of claim pursuant to Education Law §3813(1) was a condition precedent to the maintenance of her action.


* In Mennella v Uniondale UFSD, Supreme Court, 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602, it was held that a timely appeal to the Commissioner of Education provides the pre-litigation §3813 Notice of Claim that must be filed with a school district while 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 §3813 is not applicable to cases seeking to enforce such rights,” citing Matter of Tadken v Board of Education, 65 AD2d 820, Motion for leave to appeal denied, 46 NY2d 711.

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