| Matter of Sheil v Melucci |
| 2012 NY Slip Op 02505 [94 AD3d 766] |
| April 3, 2012 |
| Appellate Division, Second Department |
| In the Matter of Maureen Sheil, Respondent, v Ranier W.Melucci et al., Appellants. |
—[*1] Wolin & Wolin, Jericho, N.Y. (Alan E. Wolin of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board ofEducation of the Merrick Union Free School District dated July 1, 2010, terminating thepetitioner's employment, Ranier W. Melucci, Superintendent of Schools, Merrick Union FreeSchool District, Board of Education of Merrick Union Free School District, and Merrick UnionFree School District appeal from so much of an order of the Supreme Court, Nassau County(Sher, J.), entered May 2, 2011, as denied those branches of their motion which were pursuant toCPLR 3211 (a) (7) and 7804 (f) to dismiss the causes of action pursuant to CPLR 7803 (3)alleging that the determination was arbitrary and capricious and made in violation of CivilService Law § 75-b.
Ordered that on the Court's own motion, the notice of appeal is deemed to be an applicationfor leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the motion which were pursuant to CPLR 3211 (a) (7) and 7804 (f) to dismiss thecauses of action pursuant to CPLR 7803 (3) alleging that the determination was arbitrary andcapricious and made in violation of Civil Service Law § 75-b are granted, withoutprejudice to the petitioner's commencement of a new proceeding in accordance with CPLR 205(a) within six months after service upon her of a copy of this decision and order.
The petitioner was a probationary teacher's assistant in an elementary schoolspecial-education class in the Merrick Union Free School District (hereinafter MUFSD). In 2009the petitioner reported that another teacher's assistant had made comments that minimized theseriousness of alleged criminal conduct by a third teacher's assistant. After she reported thosecomments to the principal and assistant principal, the petitioner allegedly was subjected toretaliation. Her evaluations, which had been, for the most part, very positive, turned sharplynegative. Although the petitioner defended herself, the Board of Education of the Merrick UnionFree School District (hereinafter the Board of Education) terminated her employment in thesummer of 2010.
On November 1, 2010, the petitioner served a notice of claim upon MUFSD and, on [*2]the same date, commenced this CPLR article 78 proceeding againstRanier W. Melucci, the Superintendent of Schools of MUFSD, the Board of Education, andMUFSD (hereinafter collectively the District), to review the determination and to recover backpay and benefits. The petitioner alleged that the termination was arbitrary and capricious, that itviolated Civil Service Law § 75-b, and that it violated her rights under the FirstAmendment to the United States Constitution. The District moved to dismiss the petitionpursuant to CPLR 3211 (a) (7) and 7804 (f) for failure to state a cause of action. The Districtasserted, among other things, that, in violation of Education Law § 3813 (1), the petitionerhad not waited 30 days after serving her notice of claim before commencing the instantproceeding. The Supreme Court granted that branch of the District's motion which was to dismissthe cause of action alleging violation of the petitioner's First Amendment rights, but otherwisedenied the motion. The District appeals from so much of the order as denied those branches ofthe motion which were to dismiss the remaining causes of action, and we reverse the orderinsofar as appealed from.
Education Law § 3813 (1) provides, in relevant part, that "[n]o action or specialproceeding . . . involving the rights or interests of any district . . . shallbe prosecuted or maintained against any school district . . . unless it shall appear byand as an allegation in the complaint or necessary moving papers that a written verified claimupon which such action or special proceeding is founded was presented to the governing body ofsaid district or school within three months after the accrual of such claim, and that the officer orbody having the power to adjust or pay said claim has neglected or refused to make anadjustment or payment thereof for thirty days after such presentment." These requirements do notapply when a litigant seeks only equitable relief (see Civil Serv. Empls. Assn., Inc. v Board of Educ. of City of Yonkers,87 AD3d 557, 557-558 [2011]; Kahn v New York City Dept. of Educ., 79 AD3d 521, 522 [2010],affd 18 NY3d 457 [2012]; Matter of Trehy v Commack Union Free School Dist.,93 AD2d 891 [1983], revd on other grounds 61 NY2d 658, 659 [1983]; Ruocco vDoyle, 38 AD2d 132, 133-134 [1972]; cf. Matter of Yagan v Bernardi, 256 AD2d1225 [1998]). Here, it is undisputed that the petitioner's notice of claim was timely served uponMUFSD, but that she nonetheless served it on the same day as she commenced this CPLR article78 proceeding. Therefore, she did not—and could not—allege in the petition that 30days had elapsed since the service of the notice of claim without "adjustment or payment thereof"(Education Law § 3813 [1]). Since the petitioner seeks both equitable relief and recoveryof damages, her failure to comply with the pleading requirements of Education Law § 3813(1) requires that her petition be dismissed in its entirety (see Perkins v City of New York, 26 AD3d 483, 485 [2006]).
Nonetheless, inasmuch as the petitioner's notice of claim was otherwise timely, and theDistrict has pointed to no inherent defect in the notice of claim, the dismissal is without prejudiceto the commencement of a new proceeding within the time required by CPLR 205 (a) (see Matter of Shannon v WestchesterCounty Health Care Corp., 76 AD3d 680, 682 [2010]; Inzerillo v Town of Huntington, 67AD3d 736, 738 [2009]; McKune vCity of New York, 19 AD3d 308, 310 [2005]; cf. Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d511, 520 [2009]; Carthage Cent. School Dist. No. 1 v Reddick & Sons ofGouverneur, 67 AD2d 808, 810 [1979]).
In light of our determination, we need not address the parties' remaining contentions. Balkin,J.P., Belen, Hall and Miller, JJ., concur.