Failing to comply with statutory requirements for filing a complaint and, or, notifying the correct party of the alleged act or omission is a fatal procedural defect

Seeking reinstatement and back pay following his dismissal from his position, Petitioner [Plaintiff] brought a CPLR Article 78 action asking Supreme Court to review the determination of the Board of Education [Board] [a] terminating his employment and [b] its denial of payment for [1] certain days that he alleged he had worked, [2] his accrued sick leave credits, and [3] his unused health care benefits.

 

The Board, contending that Plaintiff had not complied with the notice of claim requirements set out in Education Law §3813(1), moved to dismiss Plaintiff's petition. The Supreme Court granted the Board's motion, in effect denying Plaintiff's petition for failure to comply §3813(1) and dismissed the proceeding. Plaintiff appealed the court's ruling.

 

The Appellate Division, affirming the lower court's ruling, explaining that §3813[1] provides that a written verified claim upon which such action or special proceeding is founded must be presented to the governing body of the school district "within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment."

 

Citing Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, the Appellate Division, said a "failure to present a claim within the statutory time limitation or to notify the correct party, is a fatal defect."

 

While the Court of Appeals has held that where the school district has been sufficiently informed of the claim all that is required is substantial compliance with the statute regarding the degree of descriptive detail in a notice of claim, it has "nevertheless, always insisted that statutory requirements mandating notification to the proper public body or official must be fulfilled." Further, opined the Appellate Division, §3813[1]'s prerequisite is not satisfied by presenting such notice to any other individual or body and, moreover, "the statute permits no exception regardless of whether the Board had actual knowledge of the claim or failed to demonstrate actual prejudice."

 

Agreeing with the Supreme Court's finding that Plaintiff failed to present his purported notice of claim to the governing body, namely, the Board, the Appellate Division pointed out that Plaintiff's sending a letter setting out his claims to the School District's Superintendent did "not constitute service upon the Board."

 

The fact that the Board ultimately obtained actual knowledge of the letter from the Superintendent's office did not satisfy the mandates set out in §3813[1] and Plaintiff failed to submit an affidavit of service or any other evidence to demonstrate that he had, in fact, served or presented his letter to the Board.

 

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2020/2020_04839.htm

 

New York State registered voters concerned about risk or exposure to COVID-19 may request an absentee ballot for the November 3, 2020 election

New York State's Governor Andrew M. Cuomo issued an Executive Order permitting any New York State registered voter concerned about risk or exposure to COVID-19 to request an absentee ballot.

 

On September 1, 2020, Governor Andrew M. Cuomo announced the launch of New York's Absentee Ballot Portal where voters can directly request an absentee ballot for the November 3, 2020 election. The Governor's Executive Order to permits any voter concerned about risk or exposure to COVID during the ongoing pandemic to request an absentee ballot.   

The Governor also issued an Executive Order to bolster and support New Yorkers' right to vote. The order requires county boards of elections to take concrete steps to inform voters of upcoming deadlines, be prepared for upcoming elections and help ensure absentee ballots can be used in all elections.

All Registered New York State Voters Can Request an Absentee Ballot Here

September 2020 AELE case notes, publications, and seminar announcements

The Americans for Effective Law Enforcement [AELE] has announce the following:

Public Safety Discipline and Internal Investigations Seminar---Attend Virtually On Demand. 

A 3½ day updated seminar on "Public Safety Discipline and Internal Investigations" begins September 28, 2020 and ends at Noon on October 1, 2020. This is an ON-DEMAND presentation, enabling those registered to attend, review, and complete "the entire seminar at your convenience, in comfortable surroundings, and gives you the opportunity to replay presentations to make sure you hear the important points of the many presenters." For registration and additional information click on http://www.aele.org/public-safety-discipline-and-internal-investigations.html

September Law Enforcement Liability Reporter: 

This issue has cases on assault and battery: physical, electronic control weapons: dart mode, failure to disclose evidence, false arrest/imprisonment: no warrant, false arrest/imprisonment: warrant, firearms related: accidental use, firearms related: intentional use, immigrants and immigration issues, and search and seizure: body cavity. http://www.aele.org/law/2020all09/LR2020SEP.pdf

September Fire, Police & Corrections Personnel Reporter: 

This issue has cases on age discrimination, collective bargaining, disciplinary interviews & compelled reports, disciplinary punishment, handicap/abilities discrimination: reasonable accommodation, pensions, religious discrimination, retaliatory personnel action, and wrongful discharge.  http://www.aele.org/law/2020all09/FP2020SEP.pdf

September Jail and Prisoner Law Bulletin: 

This issue has cases on First Amendment, gang activity, inmate funds, Prison Litigation Reform Act: exhaustion of remedies, Prison Litigation Reform Act: “three strikes” rule, prisoner assault: by inmates, prisoner discipline, prisoner suicide, and religion. http://www.aele.org/law/2020all09/JB2020SEP.pdf

New York State's Governor directs the State's Division Of Human Rights to investigate reports of a fire truck in a parade displaying a Confederate flag

Learning of a fire truck in a parade displayed a Confederate flag, New York State Governor Andrew M. Cuomo said "I'm appalled by reports that a Confederate flag was flown on a Brookhaven Fire Department truck at a Patchogue parade. We have zero tolerance for symbols of racism or division, and I have directed the New York State Division of Human Rights to investigate the incident immediately."

On August 31, 2020, a newspaper, Newsday, published an article concerning the incident. The article is posted on the Internet at:

https://www.newsday.com/long-island/suffolk/confederate-flag-brookhaven-patchogue-firetruck-1.48765917.

The Arizona State Supreme Court adopts The New Civil Liberties Alliance's proposed changes to court rules

The New Civil Liberties Alliance [NCLA], a nonpartisan, nonprofit civil rights group, announced that the Arizona Supreme Court "adopted verbatim" an NCLA-drafted amendment to the court's Judicial Review of Administrative Decisions Rules making it easier for litigants to obtain Superior Court stays of administrative decisions.

The new rule goes into effect starting January 1, 2021 and affects all appeals from the final decisions of all Arizona state agencies that are required to go to the  Arizona Superior Court.

The text of the amendment is posted on the Internet at https://nclalegal.org/wp-content/uploads/2020/08/Order-R200008.pdf.

For information about NCLA click on https://nclalegal.org/about/.