In Rodriguez v City of New York, No. 13662, 2019-5301, 28675/18, 2021 N.Y. Slip Op. 02477, 2021 WL 1566826 (N.Y.A.D. 1 Dept., Apr. 22, 2021), an employment discrimination case, the First Department unanimously affirmed the dismissal of plaintiffs’ complaint due to their failure to file a Notice of Claim as required by as required by Education Law § 3813(1).
From the decision:
It is undisputed that plaintiffs failed to file or serve a timely notice of claim with defendant DOE pursuant to Education Law § 3813(1). Thus, their claims of discrimination against the DOE were properly dismissed (see Laboy v. City of New York, 159 A.D.3d 632, 633, 74 N.Y.S.3d 524 [1st Dept. 2018], lv denied 33 N.Y.3d 904, 2019 WL 2042035 ; see also Parochial Bus Sys., Inc. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ). The individual defendants’ positions as school cooks, rather than officers, is irrelevant to the issue of whether the DOE is subject to the notice of claim requirement.
The court declined to consider plaintiffs’ argument, which it held was raised improperly for the first time in their reply brief on appeal, that under Margerum v. City of Buffalo, 24 N.Y.3d 721, 5 N.Y.S.3d 336, 28 N.E.3d 515 (2015), no notice of claim is required where the complaint alleges violations of the State and City Human Rights Laws.
It further held that where a notice of claim is required under Education Law § 3813(1) – which it was here – reliance on such case law is “misplaced.”