Labor & Employment Law

Filing a ?notice of claim? critical to challenging a probationary teacher?s dismissal

By Harvey Randall, Esq.

Filing a ?notice of claim? critical to challenging a probationary teacher?s dismissal
Matter of Wendy Sue Silvernail v Enlarged City School Dist. of Middletown, 40 A.D.3d 1004, Appellate Division, Second Department

Wendy Sue Silvernail filed an Article 78 petition seeking Supreme Court review of the determination of the Superintendent of the Enlarged City School District of Middletown terminating her employment as a probationary teacher.

Judge Rosenwasser dismissed Silvernail?s petition on the ground that Education Law Section 3813 required the filing of a notice of claim with the District before initiating her lawsuit, which she had not done. This, said Supreme Court, was a ?condition precedent to commencement of the proceeding? and thus Silvernail?s failure to do so was fatal to her cause of action.

The Appellate Division affirmed the lower court?s ruling.

In the words of the Appellate Division:

Although the petition also seeks to compel the respondent to grant the petitioner tenure, it does not seek ?judicial enforcement of a legal right derived through enactment of positive law? and therefore is not exempt from the notice of claim..

The court?s conclusion: ?In light of the petitioner?s failure to comply with the statutory requirement, the Supreme Court properly dismissed the petition.?

For the full text of the decision, go to:

http://nypublicpersonnellawarchives.blogspot.com/2007/06/filing-notice-of-claim-critical-to.html

Full post as published by New York Public Personnel Law on March 21, 2008 (boomark / email).