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:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08778.htm

Retaliation against an employee for reporting improper governmental action prohibited by Civil Service Law §75-b, the "Whistleblower Statute"

Retaliation against an employee for reporting improper governmental action prohibited by Civil Service Law §75-b, the "Whistleblower Statute"

Lilley v Greene Cent. Sch. Dist., 2019 NY Slip Op 00019, Appellate Division, Third Department

Jordon Lilley reported to Gordon Daniels, the interim superintendent of the Greene Central School District[School District], that an employee under Lilley's supervision had allegedly engaged in misconduct by texting while driving and punching in time cards of other employees who had not yet arrived at work, including the employee's daughter.

Lilley alleges that Daniels told him that "despite a recommendation from the school district's counsel to terminate [the employee]," no action would be taken against the employee. Lilley subsequently reported the employee's alleged misconduct to the State Police and appeared before the school district's Board of Education to report the same alleged employee misconduct.

According to Lilley, the day after appearing before the School Board he was placed on administrative leave and was served with charges alleging "incompetence and/or misconduct" pursuant to Civil Service Law §75. The notice of discipline set out five separate charges, including that Lilley's alleged breach General Municipal Law §800 by selling the school district field lime and rock salt from Lilley Farms, which is owned by Lilley and his wife, and that such sales constituted a conflict of interest.

Lilley then commenced this action pursuant to Civil Service Law §75-b, the so-called "Whistle Blower Statute," seeking, among other things, damages and reinstatement to his former position. Supreme Court, among other things, granted the School District's motion to dismiss Lilley's complaint, finding that documentary evidence submitted in support of the School District's motion, which included price quotes and purchase orders/requisitions regarding the sale of field lime and rock salt from Lilley Farms to the School District, warranted dismissal of Lilley's complaint. Lilley appealed.

Citing Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, the Appellate Division noted that "Civil Service Law §75-b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting improper governmental action." Although a claim pursuant to §75-b cannot be sustained when a public employer has a separate and independent basis for the action taken, "[a] disciplinary action may be retaliatory even where an employee is guilty of the alleged infraction." Further, said the court, a motion to dismiss pursuant to CPLR 3211 (a) (1) "is properly granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law."

The Appellate Division the held that Supreme Court erred procedurally and substantively in dismissing Lilley's complaint based upon documentary evidence purportedly demonstrating that he had violated General Municipal Law §800, thereby "vitiating [Lilley's] retaliation claim" as the School District's evidence failed to "conclusively establish" that Lilley possessed any of the authority enumerated in General Municipal Law §801 creating a conflict of interest. In fact, said the Appellate Division, Supreme Court's decision is devoid of any reference to the factors enumerated in General Municipal Law §801 and thus Supreme Court improperly granted the School District's motion to dismiss Lilley's petition.

The Appellate Division also found that Supreme Court erred in the substantive application of Civil Service Law §75-b with respect to the School District's contention that an independent basis existed for its placing Lilley on administrative leave.

To assert a whistle blower claim under Civil Service Law §75-b, the individual must allege (1) an adverse personnel action; (2) disclosure of information to a governmental body (a) regarding a violation of a law, rule, or regulation that endangers public health or safety, or (b) which [the individual] reasonably believes to be true and which [he or] she reasonably believes constitutes an improper governmental action; and (3) a causal connection between the disclosure and the adverse personnel action."

The element of causation requires "that 'but for' the protected activity, the adverse personnel action by the public employer would not have occurred." Supreme Court found that the purported General Municipal Law violation sufficed as a separate and independent basis for the adverse action and dismissed Lilley's claim. However, even assuming that the General Municipal Law violation is ultimately demonstrated, the trial court must make "a separate determination regarding the employer's motivation" to ensure against pretextual dismissals and "shield employees from being retaliated against by an employer's selective application of theoretically neutral rules."

The Appellate Division modified the Supreme Court's ruling "on the law" by reversing the court's granting of the School District's motion to dismiss Lilley's amended complaint and remitted the matter to the Supreme Court to permit the School District to serve an answer to Lilley's complaint.

In contrast, the Appellate Division held that Supreme Court properly denied Lilley's cross motion seeking to disqualify Lynch and his law firm as the School District's counsel, explaining that "When considering a motion to disqualify counsel, the court must consider the totality of the circumstances and carefully balance the right of a party to be represented by counsel of his or her choosing against the other party's right to be free from possible prejudice due to the questioned representation." In his affidavit, Lilley states that Lynch is a "critical witness" because he "was likely the attorney who recommended [that the employee] be terminated" and he "followed [Daniels'] directions with respect" to the disciplinary charges [filed] against [Lilley]."

Lilley, said the court, argued that the crime-fraud exception applies to the attorney-client privilege between Lynch and the School District. However the Appellate Division found that "there is no factual basis for finding that Lynch's alleged recommendation and his involvement in the disciplinary charges against Lilley are committed in furtherance of a fraud or crime." As Lynch's testimony will relate solely to the nature of his legal services rendered in the case and the disciplinary action, Lilley failed to demonstrate that he is entitled to disqualification of Lynch and his law firm from representing the Defendants.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00019.htm

Failure to effect proper service of all of the necessary documents as mandated by law is fatal to a court attaining jurisdiction over the state parties in the action

Failure to effect proper service of all of the necessary documents as mandated by law is fatal to a court attaining jurisdiction over the state parties in the action

Randolph v Office of The N.Y. State Comptroller, 2019 NY Slip Op 00167, Appellate Division, Third Department

The petitioner in this action, David L. Randolph, applied for disability retirement benefits. His application was denied by the Comptroller following a hearing. Randolph, acting pro se,* appealed the Comptroller's decision and sent the notice of petition, verified petition and supporting documents by certified mail to Office of the New York State Comptroller, the Office of the Attorney General and the Supreme Court in Albany County.

Randolph, however, failed to "personally deliver these documents to an Assistant Attorney General or to the Attorney General" as required by §307.1 of the Civil Practice Law and Rules.** The Office of the State Comptroller moved to dismiss the proceeding for "lack of personal jurisdiction." Supreme Court granted the motion, and Randolph appealed the Supreme Court's ruling.

The Appellate Division affirmed the lower court's ruling, explaining "[h]aving failed to obtain an order to show cause authorizing service by mail in lieu of personal service" Randolphused the certified mail method to effectuate service upon the Comptroller." This method, said the court, "requires that the pleadings be sent by certified mail, return receipt requested, to the Comptroller, and that they also be served upon the State of New York by personally delivering them to an Assistant Attorney General or to the Attorney General."

The record indicated that Randolphdid not personally deliver the notice of petition, verified petition, and other documents to an Assistant Attorney General or to the Attorney General. This, said the Appellate Division, is a jurisdictional defect and, in the words of the Appellate Division "Supreme Court properly dismissed the petition, and the merits of the underlying determination are not before us."

* Pro se is a Latin phrase meaning "for oneself" or "on one's own behalf", e.g., acting as one's own attorney.

** §307.2 of the CPLR, addresses "Personal service on a state officer sued solely in an official capacity or state agency" and provides, in pertinent part, "...and by personal service upon the state in the manner provided by subdivision one of this section." §307.1 of the CPLR, Personal service upon the state, provides that such service "shall be made by delivering the summons to an assistant attorney-general at an office of the attorney-general or to the attorney-general within the state."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00167.htm