866 N.Y.S.2d 687 | N.Y. App. Div. | 2008
In an action, inter alia, to recover damages for employment discrimination on the basis of race and sex in violation of Executive Law § 296, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated October 5, 2007, as granted the defendant’s motion to dismiss the complaint, inter alia, for failure to timely serve a notice of claim 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.
A claimant seeking to commence an action against a school district for violations of the Human Rights 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. School Dist., 9 NY3d 367, 370-371 [2007]; Cavanaugh v Board of Educ. of Huntington Union Free School Dist., 296 AD2d 369 [2002]; Sangermano v Board of Coop. Educ. Servs. of Nassau County, 290 AD2d 498 [2002]). Compliance with this requirement is a condition precedent to suit and must be pleaded in the complaint (see Education Law § 3813 [1]; Sangermano v Board of Coop. Educ. Servs. of Nassau County, 290 AD2d at 498; Putkowski v Warwick Val. Cent. School Dist., 363 F Supp 2d 649, 653-654 [SD NY 2005]).
If the one-year statute of limitations applicable to such actions (see Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d at 369) has not run, a claimant may seek permission to serve 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 actual knowledge of the essential facts constituting the claim within the time required for service of a timely notice of claim or a reasonable time thereafter, (2) whether the claimant had a reasonable excuse for failing to serve a timely notice of claim, and (3) whether the school district would be substantially prejudiced in its defense on the merits if the application were to be granted (see Matter of Jackson v Board of Educ., Colton-Pierrepont Cent. School Dist, 194 AD2d 901, 903-904 [1993]; cf. Matter of Blair v Pleasantville Union Free School Dist., 52 AD3d 827 [2008]; Matter of Surdo v Levittown Pub. School Dist, 41
In light of our determination, it is unnecessary to consider the District’s remaining contention. Spolzino, J.E, Florio, Miller and Leventhal, JJ., concur.