Summary
In Stoetzel, the Appellate Division, citing to Koerner and Murphy, likewise opined that the statute of limitations for an Executive Law § 296 claim is three years.
Summary of this case from Amorosi v. South Colonie Independent Central School DistrictOpinion
October 22, 1990
Appeal from the Supreme Court, Dutchess County (Jiudice, J.).
Ordered that the order is affirmed, with costs.
The plaintiff's first cause of action alleges that he was unlawfully discriminated against when he was suspended without pay by the defendants on September 16 and 20, 1983, October 12 through 14, 1983, November 15 through 18, 1983, and December 2, 1983. The suspensions were allegedly due solely to his national origin or ancestry, in violation of Executive Law § 296. The Supreme Court dismissed this first cause of action on the ground that the action was not commenced until October 1986, well after the one-year time period set forth in Executive Law § 297 (5) for filing such complaints. The plaintiff claims that this was error.
While we agree that the Supreme Court's application of Executive Law § 297 (5) was erroneous, the plaintiff's first cause of action must be dismissed as untimely interposed. It is well established that the institution of civil actions to recover damages for unlawful discriminatory practices under Executive Law § 296 is governed by the three-year Statute of Limitations prescribed in CPLR 214 (2) (see, Koerner v. State of New York, 62 N.Y.2d 442; Murphy v. American Home Prods. Corp., 58 N.Y.2d 293; Jones v. State of New York, 149 A.D.2d 470; Koeppel v. Wachtler, 141 A.D.2d 613). However, Education Law § 3813 (1) provides that in order to maintain a cause of action against a school district, a notice of claim must be presented to the school district within three months after the accrual of the claim. A complaint which fails to allege compliance with Education Law § 3813 is fatally defective (see, Murray v. LeRoy Cent. School Dist., 67 N.Y.2d 775), and the failure to comply with the statute or to seek leave to serve a late notice of claim within the applicable Statute of Limitations period is equally fatal to the action (see, Parochial Bus Sys. v. Board of Educ., 60 N.Y.2d 539; Pierson v. City of New York, 56 N.Y.2d 950; see also, 423 S. Salina St. v. City of Syracuse, 68 N.Y.2d 474; Spedding v. Bowman, 152 A.D.2d 971; Summers v. County of Monroe, 147 A.D.2d 949). Here, the complaint failed to allege compliance with the requirements of Education Law § 3813 (1). The plaintiff conceded that no notice of claim had been served, and he did not seek leave to serve a late notice of claim until after the Statute of Limitations had expired. Accordingly, the plaintiff's cross motion for leave to serve a late notice of claim was properly denied (see, Pierson v. City of New York, supra).
Further, the Supreme Court properly dismissed the plaintiff's second cause of action for failure to set forth a cognizable claim under either Labor Law § 740 or Civil Service Law § 75-b (see, Remba v. Federation Employment Guidance Serv., 76 N.Y.2d 801; Leibowitz v. Bank Leumi Trust Co., 152 A.D.2d 169). The plaintiff's attempt for the first time on appeal to characterize his second cause of action as sounding in intentional infliction of emotional distress or in prima facie tort is without merit since the allegations in the complaint cannot be read as supporting either theory of liability (see, Freihofer v. Hearst Corp., 65 N.Y.2d 135; Fischer v. Maloney, 43 N.Y.2d 553; Burns Jackson Miller Summit Spitzer v. Lindner, 59 N.Y.2d 314). Lawrence, J.P., Kooper, Harwood and Balletta, JJ., concur.