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The filing of a timely a notice of claim -- a ?condition precedent? when suing a school district ? must be pleaded in the complaint

The filing of a timely a notice of claim -- a ?condition precedent? when suing a school district ? must be pleaded in the complaint
Munro v Ossining Union Free School Dist., 2008 NY Slip Op 07886, decided on October 14, 2008, Appellate Division, Second Department

Dianne Munro was employed as the Purchasing and Accounts Payable Manager by Ossining Union Free School District. In April 2007 she commenced this action against the District under New York State's Human Rights Law (Executive Law §296) seeking to recover damages for alleged employment discrimination on the basis of race and sex.

The District filed a pre-answer motion to dismiss Munro?s petition on the grounds that the claims were barred by the statute of limitations (see Education Law §3813[2-b]) and that she had failed to timely serve a notice of claim (see Education Law §3813[1]). Munro opposed the District?s motion and cross-moved for permission to serve a late notice of claim. The Supreme Court granted the District's motion to dismiss the complaint and Munro?s motion to for leave to serve a late notice of claim. Munro appealed.

The Appellate Division first addressed the notice of claim issue, observing that an entity wishing to sue a school district for violations of the Human Rights Law must serve a notice of claim on the district within three months after accrual of the claim. Further, compliance with this requirement is a condition precedent to such a lawsuit and must be pleaded in the complaint.
In the event the entity has not served a timely notice of claim, if the one-year statute of limitations applicable to such actions has not run, the entity may seek permission to serve a late notice of claim in accordance with Education Law § 3813[2-a]).

A court, in determining whether, in its discretion, to grant such an application, must consider (1) whether the district had actual knowledge of the essential facts constituting the claim within the time required for service of a timely notice of claim or a reasonable time thereafter, (2) whether the claimant had a reasonable excuse for failing to serve a timely notice of claim, and (3) whether the school district would be substantially prejudiced in its defense on the merits if the application were to be granted.

Further, the statute requires that the court consider "in particular," the first factor, and, accordingly, that factor is entitled to the greatest weight, but none is determinative.
Here Munro argued that the District had actual knowledge of the essential facts constituting her claim because she allegedly reported various incidents. However, Munro did not provide any details about the substance of her alleged reports that would permit a record-based conclusion that the District was thereby put on notice of the essential facts underlying her current claims under the Human Rights Law.

Further, the Appellate Division said that Munro offered no excuse at all for failing to serve a timely notice of claim.

Accordingly, even if the District would not be prejudiced were the application to file a late notice of claim granted, the Supreme Court did not improvidently exercise its discretion in denying Munro leave to serve a late notice of claim.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07886.htm

Full post as published by New York Public Personnel Law on October 22, 2008 (boomark / email).