Defendants' motion for summary judgment dismissing Plaintiffs' complaint granted on showing that Plaintiffs failed to file a timely notice of claim

The Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Westchester County Local #860, Town of Eastchester Unit #9227 and the Town of Eastchester had entered into a collective bargaining agreement [CBA] which provided, among other things, that "seniority shall be the determining factor for selection to a vacant position where all other factors are equal". 

The Town created a new general foreman position, for which two applicants, A and B, had applied. The Town adopted a resolution appointing B to the position. CSEA, on behalf of B, filed a grievance pursuant to the terms of the relevant CBA and ultimately the parties proceeded to non-binding arbitration in accordance with terms set out in the CBA. 

The arbitrator issued an award in favor of CSEA and A [Plaintiffs], which award was rejected by the Town's Board and B [Defendants].

Plaintiffs commenced the instant action against the Defendants seeking damages for breach of contract and for related injunctive and declaratory relief. After joinder of issue, Defendants moved, inter alia, for summary judgment dismissing Plaintiffs' complaint. Supreme Court, among other things, granted that branch of Defendants' motion for summary judgment dismissing the Plaintiffs' complaint. The Plaintiffs appeal the Supreme Court's ruling.

The Appellate Division, citing Dannemann v Town of E. Hampton Dept. of Land Acquisition & Mgt., 221 AD3d 960, and other decisions and Town Law §65[3]), observed that "The filing of a notice of claim is . . . a condition precedent to the maintenance of an action against a town arising out of the contractual relationship between a plaintiff and a town".  Further, the Appellate Division noted that "Under Town Law §65(3), no action shall be maintained against a town upon or arising out of a contract entered into by the town . . . unless a written verified claim shall have been filed with the town clerk within six months after the cause of action shall have accrued", pointing out that "[I]n contrast to other notice statutes, Town Law §65(3) contains no provision allowing the court to excuse noncompliance with its requirements'".

Observing that Plaintiffs had failed to file a notice of claim, and, contrary to the Plaintiffs' contention, the Appellate Division pointed out that "an exception to the Town Law §65(3) notice of claim requirement is only applicable where a plaintiff has pleaded an ongoing or continuing violation, which the complaint in the present action did not."

As Plaintiffs sought both the recovery of damages and equitable relief, the Appellate Division opined that "the filing of a notice of claim was a condition precedent to the maintenance of this action" and concluded that Supreme Court had properly granted that branch of Defendants' motion which was for summary judgment dismissing the complaint". 

Click HERE to access the Appellate Division's decision posted on the Internet.