October 15, 2019

Failure to serve a timely notice of claim otherwise required by law on a public entity


The Nassau BOCES Educational Administrators Association [Association] commenced this CPLR Article 78 seeking a court order annulling a determination made by the Board of Cooperative Educational Services of Nassau County BOCES and Robert Dillon, its superintendent, [Respondents], that certain BOCES employees are not entitled to annual leave under the controlling Collective Bargaining Agreement [CBA], alleging among other things, that Respondents had "breached the contract" between the parties.

The Respondents filed its answer to the Association's petition/complaint but simultaneously asked the court to dismiss the petition/complaint "for failure to serve a notice of claim." Supreme Court granted the Respondents' motion, in effect, dismissed the Association's petition/complaint and the Association appealed the Supreme Court's ruling.

The Appellate Division introduced its ruling by explaining that although there were "certain limited exceptions," service of a notice of claim is a condition precedent to the commencement of any action and/or special proceeding against any BOCES or BOCES officer, citing Education Law §3813[1].

One such exception, said the court, is where the parties to the contract have indicated their intention to make Education Law §3813[1] inapplicable by affirmatively acting in a manner that demonstrates that the statutory requirement is inapplicable, or, at least, "they have set out detailed procedures which are plainly inconsistent with those contained in that section."

In the absence of any such action by the parties, opined the Appellate Division, "the provisions of the statute are to be deemed part and parcel of any contract entered into by [the parties]."

Noting that here the controlling CBA set forth a detailed, three-step grievance procedure but limits the definition of the term "grievance" to disputes concerning the interpretation and construction of the CBA, the Appellate Division concluded that it was not clear, "as it must be," that the parties intended to make Education Law §3813[1] inapplicable, "particularly in a case such as this one, which seeks not only equitable relief concerning the interpretation of the CBA but also to recover damages for breach of contract."

Under such circumstances, the Appellate Division said that it agreed with the Supreme Court's determination to grant Respondents' motion to dismiss the petition/complaint consistent with requirements of Education Law §3813[1].

The decision is posted on the Internet at:

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