| Matter of Smith v Brenner |
| 2013 NY Slip Op 03685 [106 AD3d 1018] |
| May 22, 2013 |
| Appellate Division, Second Department |
| In the Matter of Renita Smith, Appellant, v DanielBrenner et al., Respondents. |
—[*1] Ingerman Smith LLP, Hauppauge, N.Y. (David F. Kwee of counsel), forrespondents.
In a proceeding pursuant to CPLR article 78 to review a determination of therespondent Board of Education of the Roslyn Union Free School District datedSeptember 15, 2011, which adopted the findings and recommendations of a HearingOfficer dated September 13, 2011, and terminated the petitioner's employment as anaccount clerk effective September 16, 2011, the petitioner appeals from order andjudgment (one paper) of the Supreme Court, Nassau County (Jaeger, J.), entered May 29,2012, which granted that branch of the respondents' motion which was to dismiss thepetition based upon the petitioner's failure to comply with the notice of claimrequirements of Education Law § 3813 (1), and, in effect, dismissed theproceeding.
Ordered that the order and judgment is affirmed, with costs.
Contrary to the petitioner's contention, the filing of a notice of claim within threemonths after her underlying claim arose was a condition precedent to the maintenance ofthis proceeding, in which she seeks both equitable relief and recovery of damages(see Education Law § 3813 [1]; Matter of Sheil v Melucci, 94 AD3d 766, 767 [2012];Doyle v Board of Educ. of Deer Park Union Free School Dist., 230 AD2d 820[1996]; Matter of McClellan v Alexander Cent. School Bd. of Educ., 201 AD2d898, 899 [1994]). Moreover, the petitioner's notice of claim dated August 9, 2011,seeking damages for unlawful discrimination, did not satisfy the statutory requirement ofplacing the school district on notice of her challenge to the determination of therespondent Board of Education of the Roslyn Union Free School District terminating heremployment, which occurred subsequently on September 15, 2011 (see Varsity Tr., Inc. v Board ofEduc. of City of N.Y., 5 NY3d 532 [2005]; Agostinello v Great Neck Union Free Sch. Dist., 102 AD3d638, 639-640 [2013]). Accordingly, the Supreme Court properly granted that branchof the respondents' motion which was to dismiss the petition based upon the petitioner'sfailure to comply with the notice of claim requirements of Education Law § 3813(1). Angiolillo, J.P., Chambers, Hall and Roman, JJ., concur.