Opinion
CA 04-00368.
November 19, 2004.
Appeal from an order of the Supreme Court, Cattaraugus County (Michael L. Nenno, A.J.), entered September 8, 2003. The order granted defendant's motion and dismissed the complaint.
Before: Pigott, Jr., P.J., Gorski, Martoche and Hayes, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.
Memorandum: Supreme Court erred in granting defendant's motion and dismissing the complaint in this action in which plaintiff alleges that defendant terminated her employment based on her age and gender, in violation of Executive Law § 296. Although we agree with defendant that plaintiff was required to file a notice of claim ( see Mills v. County of Monroe, 59 NY2d 307, 312, cert denied 464 US 1018; Matter of Saranac Lake Cent. School Dist. v. New York State Div. of Human Rights, 226 AD2d 794, 795, lv denied 88 NY2d 816), we reject defendant's contention that she failed to do so. We conclude that plaintiff's "charge letter" submitted to the New York State Division of Human Rights within the statutory time period "sufficiently informed [defendant] of the claim" and thereby "constitute[d] substantial compliance" with the notice of claim requirement ( Saranac Lake Cent. School Dist., 226 AD2d at 795-796 [internal quotation marks omitted]). Also contrary to defendant's contention, dismissal of the complaint is not required based on the failure of plaintiff to comply with Public Housing Law § 157 (1) by alleging in the complaint that 30 days have elapsed since she presented her claim to defendant and defendant refused to make payment. "The defect [is] not a jurisdictional one and we deem the complaint amended to plead [the requisite presentment and refusal to make payment]" ( Snyder v. Board of Educ. of Ramapo Cent. School Dist. No. 2, Town of Ramapo, Rockland County, 42 AD2d 912, 912).