Perfecting an action or special proceeding against a political subdivision of the State or other entities may require the filing of a timely notice of claim
Mirro v City of New York, 2018 NY Slip Op 02154, Appellate Division, Second Department
A timely filing of a "notice of claim" may be a condition precident to maintaining and an action or special proceeding against a political subdivision of the State. General Municipal Law §50-i, for example, provides, in pertinent part, that "No action or special proceeding shall be prosecuted or maintained against a city, county, town, village, fire district or school district for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city, county, town, village, fire district or school district or of any officer, agent or employee thereof, including volunteer firemen of any such city, county, town, village, fire district or school district or any volunteer fireman whose services have been accepted pursuant to the provisions of section two hundred nine-i of this chapter, unless, (a) a notice of claim shall have been made and served upon the city, county, town, village, fire district or school district in compliance with section fifty-e of this article.*"
New York courts, however, have recognized a "public interest exception" to this notice requirement as was an element in the plaintiff maintaining certain branches of her cause of action in Mirro v City of New York.
The plaintiff in this action, Michele Mirro, was employed by the New York City Department of Consumer Affairs [DCA]. She commenced a lawsuit against the City, DCA, and four DCA employees in which she set out causes of action to recover damages for alleged violations of her rights to free speech and to petition under the New York State Constitution, Article I, §§8-9, and discrimination on the basis of age in violation of the New York City Human Rights Law.
Supreme Court granted certain of DCA's motions and denied certain of Mirro's cross motions. Mirro appealed these rulings by Supreme Court.
The Appellate Division, noting that Mirro failed to serve a notice of claim, said this was a fatal omission and "requires dismissal of the cause of action alleging violations of the State Constitution." Rejecting Mirro's argument to the contrary, the court said that this branch of her complaint "does not fall within the public interest exception to the notice of claim requirement," as Mirro was seeking to vindicate her private rights and the disposition of those claim will not directly affect or vindicate the rights of others.
In addition, the court observed that Mirro's complaint named the individual DCA defendants in her complaint "in their individual capacities," alleging she suffered retaliation by them as part of their employment, and, thus, the notice of claim requirement applied to these claims as well.
In contrast, the Appellate Division ruled that Supreme Court erred in granting DCA's motion to dismiss Mirro's cause of action alleging age discrimination within the meaning of New York City's Human Rights Law. The court explained that Mirro's alleged disparate treatment of older employees, including herself, and that disciplinary charges that had been served upon her were based, in part, on age discrimination, sufficiently stated a cause of action to recover for age discrimination pursuant to the New York City's Human Right Law.
With respect to the exception to the notice requirement in cases that involved 1. an issue of vindication a public interest [Doyle v Deer Park Union Free School District, 230 A.D.2d 820] and 2. a case in which a collective bargaining agreement between the parties, Civil Service Employees' Association v Lakeland Central School District, 230 A.D.2d 703, was found to constitute a waiver of the notice of claim provision of law. These decision illustrate how the courts evaluate these exceptions.
In Doyle v Deer Park Union Free School District educator Velia Doyle and a number of other teachers sued Deer Park alleging it had unlawfully discriminated against them. The educators contended that the District had violated §296 of the Executive Law, the State's Human Rights Law, prohibiting age discrimination.
Doyle alleged that the District's discriminatory acts resulted in her, and the other teachers, losing certain retirement benefits.
The basic question before the Appellate Division was whether Doyle's claim involved the vindication of an issue of public interest. The court decided Doyle's action did not involve any public interest. Rather, the essential element in the action was a private interest -- damages for lost retirement benefits Doyle claimed were due to her and her co-teachers. Accordingly, her failure to file a timely notice of claim could not be excused on the grounds that she was seeking to vindicate a public interest.
Because Doyle and other teachers who had joined her in the action did not satisfy the filing requirements set out in Education Law §3813(1), the Appellate Division concluded that the lower court had properly dismissed the action as it was "barred insofar as asserted against the Board of Education."
In Civil Service Employees' Association v Lakeland Central School District, Lakeland moved to dismiss the Association's action on the grounds that CSEA failed to file a timely §3813 notice of claim.
The District's motion to dismiss was denied by a New York State Supreme Court judge. When the District appealed, the Appellate Division affirmed the lower court's ruling. The Appellate Division explained that CSEA was not required to comply with Education Law §3813's requirements because the collective bargaining agreement contained a detailed grievance procedure waiving CSEA's duty to comply with that statutory requirement.
Although exceptions to the three-month requirement exist, it would seem prudent to file a timely notice of claim as set out in "notice statutes" such General Municipal Law §50-e, §50-i, and Education Law §3813 rather than attempt to persuade a court that it was not necessary to do so in a particular situation.
* Other "notice of claim" provisions are set out in law such as those mandated by Education Law §3813 and General Municipal Law §50-e. §50-e, however, excludes claims arising under the provisions of the Workers' Compensation Law, the Volunteer Firefighters' Benefit Law, and the Volunteer Ambulance Workers' Benefit Law, together with claims filed against public corporations by their own infant wards, from such notice of claim requirements.
The Mirro decision is posted on the Internet at: