Opinion
July 13, 1978
Appeal from the Livingston Supreme Court.
Present — Marsh, P.J., Moule, Dillon, Denman and Schnepp, JJ.
Judgment unanimously reversed and petitioner dimissed, without costs. Denman, J., not participating. Memorandum: Following petitioner's dismissal from her position, effective June 30, 1976, she commenced this CPLR article 78 proceeding on November 1, 1976, seeking reinstatement with tenure to a full-time teaching position and backsalary. The petition contains no allegation that a verified claim was presented to the respondent board of education within three months after the claim accrued as required by subdivision 1 of section 3813 Educ. of the Education Law. Although this issue was not specifically raised at Special Term, there is no indication in the briefs or the record that petitioner could have taken legal countersteps or made factual showings necessary to cure the obvious defect and, accordingly, it is properly considered here (see Telaro v Telaro, 25 N.Y.2d 433, 439; Matter of Tessy Plastics Corp. v State Div. of Human Rights, 62 A.D.2d 36, 39). Petitioner seeks the enforcement of private rights and duties, and therefore the provisions of subdivision 1 of section 3813 are applicable (Board of Educ. v New York State Div. of Human Rights, 44 N.Y.2d 902; Union Free School Dist. No. 6 of Towns of Islip Smithtown v New York Human Rights Appeal Bd., 35 N.Y.2d 371, 379-380, mot for rearg den 36 N.Y.2d 807). The section establishes a condition precedent which petitioner was required to plead and prove (Matter of Board of Educ. [Wager Constr. Corp.], 37 N.Y.2d 283, 287; Matter of Board of Educ. [Heckler Elec. Co.,], 7 N.Y.2d 476, 482; cf. Camarella v East Irondequoit Cent. School Bd., 41 A.D.2d 29, 31, affd 34 N.Y.2d 139). Not having done so, petitioner was not entitled to maintain this proceeding (cf. Barchet v New York City Tr. Auth., 20 N.Y.2d 1, 6) and the courts are without discretion to excuse petitioner's noncompliance (Kinner v Board of Educ., 6 A.D.2d 204, 207, affd without opn 9 N.Y.2d 845). The time period prescribed in section 3813 expired prior to the institution of this proceeding and thus petitioner's right to relief is now barred and the proceeding must be dismissed (Matter of Grey v Board of Educ., 60 A.D.2d 361; Widger v Central School Dist. No. 1, 20 A.D.2d 296).