February 01, 2019

The timely filing of a notice of claim required by Education Law §3813(1) does not toll the running of the statute of limitations for commencing a lawsuit


The timely filing of a notice of claim required by Education Law §3813(1) does not toll the running of the statute of limitations for commencing a lawsuit
Bratge v Simons, 2018 NY Slip Op 08778, Appellate Division, Fourth Department

Among the issues raised by Plaintiffs in this appeal was the claim that Supreme Court erred in dismissing the complaint as barred by statute of limitations. Plaintiffs argued that the action was timely commenced by Plaintiffs because they had served a notice of claim within the relevant limitations period. The Appellate Division disagreed, explaining that "the filing of the notice of claim did not toll the [running of the] statute of limitations" with respect to their cause of action.

Plaintiffs also argued that the breach of contract claim in their first cause of action did not accrue until they were able to access damages they allegedly suffered. Again the Appellate Division disagreed, stating that an action for an alleged breach of contract accrues at the time of the breach even if "no damage occurs until later." Consequently, said the court, "that claim accrued at the time of the alleged breach ... and thus it was time-barred under the one-year statute of limitations in Education Law §3813 (2-b)."

Plaintiffs also argued that a claim in their first cause of action alleging a violation of Plaintiffs' due process rights was not time-barred under the continuing wrong doctrine. This argument was also rejected by the Appellate Division. The court observed that the continuing wrong doctrine allows a later accrual date of a cause of action "where the harm sustained by the complaining party is not exclusively traced to the day when the original objectionable act was committed." In other words, the "continuing wrong,” is deemed to have accrued on the date of the last wrongful act.

The decision is posted on the Internet at:


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