Opinion
November 17, 1980
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Board of Education of the East Ramapo Central School District, terminating petitioners from their positions as physical education teachers, the appeal is from so much of a judgment of the Supreme Court, Rockland County, dated May 9, 1979, as granted a motion by the board of education to dismiss the cross petition for failure to file a notice of claim. Appeal by movant Sovak dismissed for failure to perfect. Judgment reversed insofar as appealed from by the cross petitioners, without costs or disbursements, motion denied and cross petition reinstated. By their cross petition, four teachers, all of whom had once been credited by the Board of Education of the East Ramapo Central School District (board) with at least six years of "equated service", seek to annul a determination of the board which terminated their employment and to obtain reinstatement with back pay and related benefits. No monetary damages are sought apart from the back pay which is a natural concomitant of reinstatement to a previously held position. The cross petitioners did not serve upon the board the notice of claim prescribed in section 3813 Educ. of the Education Law. For this alleged omission, the board's motion to dismiss the cross petition was granted. Dismissal was error since the nature of the relief sought by the cross petitioners renders compliance with that section unnecessary. The notice of claim requirement contained in that section need not be complied with where the claimant seeks to "vindicate a public interest" (Union Free School Dist. No. 6 of Towns of Islip Smithtown v. New York State Human Rights Appeal Bd., 35 N.Y.2d 371, 380). Since the cross petitioners seek to establish or enforce tenure rights, they may be said to be seeking to vindicate a public interest, and the provisions of section 3813 are inapplicable to their proceeding (see Matter of Gross v. Board of Educ., 73 A.D.2d 949; Matter of Tadken v. Board of Educ., 65 A.D.2d 820, mot for lv to app den 46 N.Y.2d 711). Even if the provisions of section 3813 were applicable to the cross petitioners' proceeding, we would hold that, under the particular circumstances of this case, the verified cross petition, served less than three months after the effective date of the termination of the cross petitioners' employment, constituted a notice of claim sufficient to comply with that section (see Quintero v. Long Is. R.R., 31 A.D.2d 844). Mollen, P.J., Mangano, Margett and Weinstein, JJ., concur.