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Filing a statutorynotice of claim: efforts by an individual to vindicate a personal interest andefforts to vindicate a public interest distinguished
Palmer v Niagara Frontier Transp. Auth., 56AD3d 1245
A former employee sued the Niagara Frontier Transportation Authority allegingthat the Authority terminated his employment in retaliation for his havingadvised the Authority’s employees and agents of alleged safety violations athis work site.
The Appellate Division ruled that Supreme Court properly granted the Authority’smotion for summary judgment to dismiss individual’s complaint.
The former employee had contended that the Authority had violated Civil ServiceLaw §75-b, the “Whistle Blower Law." However, said the court, in thisinstance the individual sought only to vindicate his “individualinterests," and he had not filed a notice of claim as mandated by PublicAuthorities Law §1299-p(1) before initiating his law suit. This, explained thecourt, was a fatal omission on the part of the individual.
With respect to the applicability of the three-month notice of claimrequirement of Education Law 3813(1) to statutory or nonjudicial proceedingsinvolving school districts, school boards and boards of cooperative educationalservices, as well as parallel notice of claim requirements when suchproceedings involve other municipal units of government, New York’s courts havedistinguished between proceedings which concern an individual’s personalinterest [see, for example, Doyle v. Board of Education of Deer Park Union FreeSchool District, 230 A.D.2d 820, a case involving a claim of lost retirementbenefits] and those involving an individual seeking to vindicate a publicinterest (see, for example, Union Free School District No. 6 of Towns of Islip& Smithtown v New York State Division of Human Rights Appeal Board, 35 NY2d371, at 380, motion to reargue denied 36 NY2d 807).
The general rule: statutes requiring the filing of a notice of claim as acondition precedent to initiating litigation are applicable in actionsinvolving “only a personal interest” but not in actions involving an effort tovindicate a “public interest.”
There as some exceptions to this general rule, however.
PERB, relying on the Court of Appeals ruling in Freudenthal v. Nassau County,99 NY2d 285, that claims filed with the NY State Division of Human Rights, anadministrative agency, do not require the filing of a Notice of Claim pursuantto Education Law Section 3813, has ruled that such notice is not required withrespect to improper practice charges filed with it.
Similarly, the Commissioner of Education has held that Section 3813 does notapply to appeals brought under Section 310 of the Education Law [Appeals ofBodnar and DeGiglio, 1990 Opinions of the Commissioner of Education, 12369]while in Mennella v Uniondale UFSD, 287 A.D.2d 636, the Appellate Divisiondecided that a petition filed with the Commissioner of Education may constitutethe functional equivalent of a Section 3813(1) notice of claim.
In Sephton v Board of Education of the City of New York, 99 AD2d 509, theAppellate Division ruled that "the 'tenure rights' of teachers are ...considered a matter in the public interest and therefore Section 3813 is not applicableto cases seeking to enforce such rights."
Addressing another aspect of the former employee’s petition, the AppellateDivision ruled that his cause of action “is not viable because Civil ServiceLaw §75-b(2)(a)(i) prohibits a public employer from … terminating a publicemployee based on the employee's disclosure of the ‘violation of a law, rule orregulation which violation creates and presents a substantial and specificdanger to the public health or safety’ [and the Authority] established as a matterof law that the safety concerns raised by [former employee] did not presentsuch a danger, and [the individual] failed to raise an issue of fact.”
The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08947.htm
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