| Munro v Ossining Union Free School Dist. |
| 2008 NY Slip Op 07886 [55 AD3d 697] |
| October 14, 2008 |
| Appellate Division, Second Department |
| Dianne Munro, Appellant, v Ossining Union Free SchoolDistrict, Respondent. |
—[*1] Traub Lieberman Straus & Shrewsberry, LLP, Hawthorne, N.Y. (Daniel G. Ecker of counsel), forrespondent.
In an action, inter alia, to recover damages for employment discrimination on the basis of race andsex in violation of Executive Law § 296, the plaintiff appeals, as limited by her brief, from somuch of an order of the Supreme Court, Westchester County (Smith, J.), dated October 5, 2007, asgranted the defendant's motion to dismiss the complaint, inter alia, for failure to timely serve a notice ofclaim and denied that branch of her cross motion which was for leave to serve a late notice of claim.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff was a purchasing and accounts payable manager employed by the defendant OssiningUnion Free School District (hereinafter the District). In April 2007 she commenced this action againstthe District under New York State's Human Rights Law (Executive Law § 296) seeking, interalia, to recover damages for employment discrimination on the basis of race and sex. The District filed apre-answer motion to dismiss pursuant to CPLR 3211 (a) (7) and Education Law § 3813, onthe grounds that the claims were barred by the statute of limitations (see Education Law§ 3813 [2-b]) and that the plaintiff failed to timely serve a notice of claim (see EducationLaw § 3813 [1]). The plaintiff opposed the motion and cross-moved, inter alia, for leave toserve a late notice of claim. The Supreme Court granted the District's motion to dismiss the complaintand, inter alia, denied that branch of the plaintiff's cross motion which was for leave to serve a latenotice of claim.
A claimant seeking to commence an action against a school district for violations of the HumanRights Law must serve a notice of claim on the district within three months after accrual of the claim(see Education Law § 3813; Matter of Amorosi v South Colonie Ind. Cent. SchoolDist., [*2]9 NY3d 367, 370-371 [2007]; Cavanaugh v Boardof Educ. of Huntington Union Free School Dist., 296 AD2d 369 [2002]; Sangermano v Boardof Coop. Educ. Servs. of Nassau County, 290 AD2d 498 [2002]). Compliance with thisrequirement is a condition precedent to suit and must be pleaded in the complaint (seeEducation Law § 3813 [1]; Sangermano v Board of Coop. Educ. Servs. of NassauCounty, 290 AD2d at 498; Putkowski v Warwick Val. Cent. School Dist., 363 F Supp2d 649, 653-654 [SD NY 2005]).
If the one-year statute of limitations applicable to such actions (see Matter of Amorosi v SouthColonie Ind. Cent. School Dist., 9 NY3d at 369) has not run, a claimant may seek permission toserve a late notice of claim (see Education Law § 3813 [2-a]). In determining whether,in its discretion, to grant such an application, the court must consider (1) whether the district had actualknowledge of the essential facts constituting the claim within the time required for service of a timelynotice of claim or a reasonable time thereafter, (2) whether the claimant had a reasonable excuse forfailing to serve a timely notice of claim, and (3) whether the school district would be substantiallyprejudiced in its defense on the merits if the application were to be granted (see Matter of Jacksonv Board of Educ., Colton-Pierrepont Cent. School Dist., 194 AD2d 901, 903-904 [1993]; cf. Matter of Blair v Pleasantville Union FreeSchool Dist., 52 AD3d 827 [2008]; Matter of Surdo v Levittown Pub. School Dist., 41 AD3d 486, 487[2007]; Matter of Padovano v MassapequaUnion Free School Dist., 31 AD3d 563, 564 [2006]). The statute requires that the courtconsider "in particular," the first factor, and, accordingly, that factor is entitled to the greatest weight, butnone is determinative (see Matter of Felice vEastport/South Manor Cent. School Dist., 50 AD3d 138, 147 [2008]; Catterson v Suffolk County Dept. of HealthServs., 49 AD3d 792, 794 [2008]). Here, the plaintiff argues that the District had actualknowledge of the essential facts constituting her claim because she allegedly reported various incidents.In her cross motion and supporting documents, however, the plaintiff offered no details about thesubstance of her alleged reports that would permit a record-based conclusion that the District wasthereby put on notice of the essential facts underlying her current claims under the Human Rights Law.Additionally, the plaintiff offered no excuse at all for failing to serve a timely notice of claim.Consequently, even if the District would not be prejudiced were the application to be granted, theSupreme Court did not improvidently exercise its discretion in denying the plaintiff leave to serve a latenotice of claim.
In light of our determination, it is unnecessary to consider the District's remaining contention.Spolzino, J.P., Florio, Miller and Leventhal, JJ., concur.