State, City Human Rights Law Claims Are Not “Torts” Under Notice of Claim Statute, Court Holds

In DeMarzo v. Urban Dove, Inc., 2017 NY Slip Op 32612(U) (NY Sup. Ct. Kings Cty., 500466/13, Nov. 21, 2017), the court denied defendants’ motion to dismiss plaintiff’s disability discrimination and retaliation claims under the NYS and NYC Human Rights Laws on the ground that plaintiff failed to file a Notice of Claim.

The governing statute, Education Law 3813(2) provides, in relevant part:

[N]o action or special proceeding founded upon tort shall be prosecuted or maintained … against any teacher or member of the supervisory or administrative staff or employee where the alleged tort was committed by such teacher or member or employee acting in the discharge of his duties within the scope of his employment and/or under the direction of the board of education, trustee or trustees, or governing body of the school unless a notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law.

In this case, plaintiff alleged, inter alia, that defendants subjected her to a hostile work environment based on her disabilities and then retaliated against her by terminating her employment because of her prior written complaint of disability discrimination. She concedes that she did not serve a notice of claim before the inception of this action.

Plaintiff did not oppose summary judgment in favor of the defendant School on the ground that she failed to file a notice of claim. However, the court denied defendants’ motion with respect to the remaining individual defendants (Nanda and Rossant).

The court explained:

Whereas Education Law 3813 (2) dictates that no action “where the alleged tort”was committed by any teacher or member of administrative staff may be commenced “unless a notice of claim shall have been made and served,” an action brought under the State or City HRL is not a “tort” claim within the meaning of the statute[.] …  Thus, the branch of the defendants’ motion for summary judgment dismissing the amended complaint for failure to serve a notice of claim is denied as to the plaintiff’s disability discrimination and retaliation clams against Nanda and Rossant.

It concluded, however, that plaintiff’s claim of false imprisonment is a “tort” claim within the meaning of the cited section, and therefore granted defendants’ motion for summary judgment as to that claim.

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