Agostinello v Great Neck Union Free Sch. Dist.
2013 NY Slip Op 00052 [102 AD3d 638]
January 9, 2013
Appellate Division, Second Department
As corrected through Wednesday, February 27, 2013


Joseph Agostinello, Respondent,
v
Great NeckUnion Free School District, Appellant.

—[*1]Sokoloff Stern LLP, Westbury, N.Y. (Adam I. Kleinberg and Melissa L. Holtzerof counsel), for appellant.

Wolin & Wolin, Jericho, N.Y. (Alan E. Wolin of counsel), for respondent.

In an action, inter alia, pursuant to Executive Law § 296 to recover damagesfor discrimination in the privileges, terms, and conditions of employment on the basis ofphysical disability, the defendant appeals, as limited by its brief, from so much of anorder of the Supreme Court, Nassau County (Cozzens, Jr., J.), dated January 30, 2012, asdenied that branch of its motion which was for summary judgment dismissing the causeof action alleging its failure to reasonably accommodate the plaintiff's physical disability.

Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the defendant's motion which was for summary judgmentdismissing so much of the cause of action alleging a failure to reasonably accommodatethe plaintiff's physical disability as is based on the defendant's conduct allegedlyoccurring after February 4, 2003, and substituting therefor a provision granting thatbranch of the motion; as so modified, the order is affirmed insofar as appealed from, withcosts to the appellant.

From 1993 to 2006, the plaintiff was employed on the custodial staff of thedefendant, Great Neck Union Free School District (hereinafter the school district). Theplaintiff served a notice of claim upon the school district, dated February 4, 2003,alleging, inter alia, that the school district discriminated against him by failing toreasonably accommodate his physical disability resulting from a back injury. Following alengthy, injury-related absence from work, the plaintiff returned to his employmentduties in 2005, before resigning his position in 2006 and accepting employment withanother school district.

In July 2009, the plaintiff commenced this employment discrimination action,alleging the school district's distinct failures to accommodate his physical disabilitythrough 2006. Following discovery, the school district moved for summary judgment,contending, inter alia, that the cause of action alleging a failure to reasonablyaccommodate should be dismissed to the extent that it was premised on events occurringafter February 4, 2003, since the notice of claim did not provide the school district withnotice of those events. The Supreme Court denied that branch of the school district'smotion.[*2]

As a condition precedent to the maintenance ofthis action, the plaintiff was required to serve a notice of claim upon the school districtwithin three months after his underlying claim arose (see Education Law §3813 [1]; Munro v OssiningUnion Free School Dist., 55 AD3d 697, 698 [2008]; Cavanaugh v Board ofEduc. of Huntington Union Free School Dist., 296 AD2d 369 [2002]). Since theplaintiff had served a notice of claim dated February 4, 2003, that notice of claim did notsatisfy the statutory requirement of placing the school district on notice of those allegedlydiscriminatory acts which took place subsequent to the date of the notice (see Varsity Tr., Inc. v Board ofEduc. of City of N.Y., 5 NY3d 532 [2005]). Accordingly, the Supreme Courtshould have granted that branch of the school district's motion which was for summaryjudgment dismissing so much of the cause of action alleging a failure to reasonablyaccommodate the plaintiff's physical disability as was based upon acts occurring after thedate of the notice of claim.

The school district's remaining contentions either are without merit or need not bereached in view of the foregoing. Mastro, J.P., Angiolillo, Sgroi and Miller, JJ., concur.


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