In the Matter of Elizabeth McGovern, Appellant,v.Mount Pleasant Central School District, Respondent.

Brief

N.Y.April 28, 2015

APL-2014-00115 Westchester County Clerk’s Index No. 15463/11 Court of Appeals STATE OF NEW YORK In the Matter of the Application of ELIZABETH MCGOVERN, Petitioner-Appellant, For a Judgment Pursuant to Article 78 of the C.P.L.R. against MOUNT PLEASANT CENTRAL SCHOOL DISTRICT, Respondent-Respondent. >> >> BRIEF FOR RESPONDENT-RESPONDENT INGERMAN SMITH, LLP Attorneys for Respondent-Respondent 550 Mamaroneck Avenue, Suite 209 Harrison, New York 10528 914-777-1134 Date Completed: August 27, 2014 Of Counsel: Emily J. Lucas To Be Argued By: Emily J. Lucas Time Requested: 30 Minutes i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................. iii PRELIMINARY STATEMENT ............................................................................ 1 COUNTERSTATEMENT OF THE QUESTIONS PRESENTED ................................................................................... 2 COUNTERSTATEMENT OF THE CASE ............................................................ 3 ARGUMENT .......................................................................................................... 9 POINT I THE APPELLATE DIVISION PROPERLY REVERSED THE LOWER COURT IN THAT A NOTICE OF CLAIM IS REQUIRED AS A CONDITION PRECEDENT TO INITIATING THIS CLAIM ................... 9 A. The Judicial history of the Court of Appeals confirms that Petitioner’s claims are in the nature of “private interest” and a notice of claim is a condition precedent to filing an action against the Respondent ..................................................... 11 B. Lower courts have likewise confirmed in numerous cases that Petitioner’s claims are one of “private interest” requiring the filing of a notice of claim ........................................... 17 C. Petitioner has failed to produce any relevant authority to establish that her claim should be excluded from the requirements of Education Law Section 3813(1) .............. 22 D. Education Law Section 3813(1) evidences the legislative intent to encompass all private interest actions in its requirement to file a notice of claim ........................... 27 ii POINT II THE COURT SHOULD DISREGARD THE NEW FACTS AND THEORIES PETITIONER ADVANCES FOR THE FIRST TIME ON THIS APPEAL ............................................ 30 CONCLUSION ..................................................................................................... 33 iii TABLE OF AUTHORITIES Cases Cited: Angarano v. Harrison Cent. Sch. Dist., 14 Misc.3d 1217 (2007) ...................................................................... 18, 19, 20, 26 Brunecz v. City of Dunkirk Board of Educ., 23 A.D.3d 1126 (4th Dept. 2005) ......................................................................... 21 Cayuga-Onondaga Counties Bd. of Cooperative Educ. Services v. Comm. Of Labor of State of New York, 89 N.Y.2d 395 (1996) ........ 13, 14, 15, 24 Clark v. Group Plan for Employees of North Tonawanda Public Schools, 845 F.Supp. 117 (1994) ........................................................................................ 27 Cordani v. Board of Educ. of Hempstead, 66 A.D.2d 780 (2d Dept. 1978) .......................................................... 17, 19, 20, 26 Cowan v. Board of Educ. of the Brentwood Union Free Sch. Dist., 99 A.D.2d 831 (2d Dept. 1984) ............................................................................ 20 Dembovich v. Liberty Central School Dist. Board of Education, 296 A.D.2d 794 (3d Dept. 2002) .................................................................... 18, 20 First Int'l Bank of Israel, Ltd. v. L. Blankstein & Son, Inc., 59 N.Y.2d 436, 447 (N.Y. 1983) .......................................................................... 30 Fontana v. Town of Hempstead, 13 N.Y.2d 1134 (N.Y. 1964) ................................................................................ 22 Goetschius v. Board of Educ. of the Greenburgh Eleven Union Free School District, 1996 WL 34565310 (1996) ................................................................................... 19 Grant v. Town of Kirland, 10 A.D.2d 474 (4th Dept. 1960) ........................................................................... 23 Jamindar v. Uniondale Union Free Sch. Dist., 90 A.D.3d 612, 617 (2d Dept. 2011) .................................................................... 30 iv Jones v. Bd. of Educ. of Watertown City School Dist., 30 A.D.3d 967 (4th Dept. 2006) ..................................................................... 24, 25 Kahn v. New York City Dept. of Educ., 18 N.Y.3d 457 (N.Y. 2012) ............................................................................ 15, 16 Kahn v. New York City Dept. of Educ., 79 A.D.3d 510 (1st Dept. 2010) ...................................................................... 15, 16 Kretzmon v. Erie County, 2013 WL 636545 (2013) ....................................................................................... 21 Lindsey v. Board of Educ. of Mt. Morris Central School District, 72 A.D.2d 185(4th Dept. 1980) ............................................................................ 17 Matarrese v. N.Y. City Health and Hosp. Corp., 247 A.D.2d 475 (2d Dept. 1998) .......................................................................... 31 Matter of O’Connor v. Board of Educ. of Greenburgh-Graham Union Free Sch. Dist., 11 A.D.3d 616 (2d Dept. 2004) ............................................................................ 20 McManus v. Bd. of Educ. of Hempstead Union Free Sch. Dist., 87 N.Y.2d 183, 187 (N.Y. 1995) .................................................................... 31, 32 Miller v. Village of Wappingers Falls, 289 A.D.2d 209 (2d Dept. 2001) .......................................................................... 31 Mills v. County of Monroe, 59 N.Y.2d 307 (N.Y. 1983) .................................................................................. 12 Moraitis v. Board of Educ. Deer Park Union re Sch. Dist., 84 A.D.3d 1090 (2d Dept. 2012) .......................................................................... 20 Opalinski v. City of New York, 110 A.D.3d 694, 696 (2d Dept. 2013) .................................................................. 31 Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 547-48 (N.Y. 1983) ..................................................................... 10 v Perlin v. South Orangetown Central School District, 216 A.D.2d 397 (2d Dept. 1995) .................................................................... 17, 20 Pile v. Grant, 41 A.D.3d 810, 811 (2d Dept. 2007) .................................................................... 31 Rutigliano v. Board of Educ. of the City of New York, 176 A.D.2d 866 (2d Dept. 1991) .......................................................................... 17 Sammons v. City of Gloversville, 175 N.Y.2d 346 (N.Y. 1903) ................................................................................ 23 Sandak v. Tuxedo Union School Dist. No.3, 308 N.Y. 226, 230 (1954) ............................................................................... 29, 30 Saranac Lake Central School District and New York State Division of Human Rights, 226 A.D.2d 794 (3d Dept. 1996) ........................................................ 17, 18, 20, 26 Sheil v. Melucci, 94 A.D.3d 766 (2d Dept. 2012) .............................................. 18, 19, 20, 21, 22, 26 Silvernail v. Enlarged City School District of Middletown, 40 A.D.3d 1004 (2d Dept. 2007) ........................................................ 18, 19, 20, 26 Speis v. Penfield Central Schools, 98 N.Y.S.2d 642, 645 (4th Dept. 2014) .......................................................... 20, 25 Trehy v. Commack Union Free School, 93 A.D.2d 891 (2d Dept. 1983) ............................................................................ 24 Union Free School Dist. No. 6 of Towns of Islip and Smithtown v. New York State Human Rights Appeal Bd, 320 N.Y.2d 371, 379-80 (1974) .......................................................... 11, 12, 23, 24 Statutes Cited: N.Y. C.P.L.R §7806 .............................................................................................. 29 N.Y. Education Law § 2509 (1)(a) ......................................................................... 3 vi N.Y. Education Law § 2573 (1)(a) ......................................................................... 3 N.Y. Education Law § 3012 (1)(a) ......................................................................... 3 N.Y. Education Law § 3012-c ................................................................................ 3 N.Y. Education Law § 3014 (1) .............................................................................. 3 N.Y. Education Law § 3813 ................................................................................... 9 N.Y. Education Law § 3813 (1) ........................................ 10, 15, 22, 25, 27, 28, 29 N.Y. Education Law § 3813 (2) ...................................................................... 23, 30 N.Y. General Municipal Law § 50-e .................................................. 22, 23, 29, 30 8 NYCRR § 100.2 (o) ............................................................................................. 3 - 1 - PRELIMINARY STATEMENT Respondent-Respondent, Mount Pleasant Central School District (hereinafter referred to as the “Respondent,” “School District” or “District”), submits this brief in opposition to the appeal commenced by Petitioner-Appellant, Elizabeth McGovern (hereinafter referred to as “Petitioner”), from the decision and order of the Appellate Division, Second Department, dated February 13, 2014, wherein the Appellate Division reversed an Order of Justice Albert Lorenzo, of the Supreme Court, Westchester County, dated February 24, 2012 and entered in the Westchester County Clerk’s Office on February 27, 2012, which granted reinstatement of Petitioner to a probationary teacher position, with back pay, pending Respondent holding a hearing on the question of bad faith in connection with the recommendation of the Superintendent of Schools to deny Petitioner tenure. Respondent submits that the Appellate Division properly held that Petitioner failed to satisfy the statutory requirement of filing a notice of claim as a condition precedent to her action. For the reasons set forth below, the Court should affirm the Appellate Division’s Order reversing the Supreme Court’s Order. - 2 - COUNTERSTATEMENT OF THE QUESTIONS PRESENTED Question 1: Whether the Appellate Division properly held that Petitioner failed to satisfy her legal obligation to serve the School District with a notice of claim as a condition precedent to filing this action? Question 2: Whether the Appellate Division’s Decision and Order was proper given that Petitioner is not exempt from filing a Notice of Claim? Question 3: Whether the Court should disregard the new facts and theories Petitioner advances for the first time on this appeal? The above questions should be answered in the affirmative. - 3 - COUNTERSTATEMENT OF THE CASE This action arose out of the School District’s determination to deny Petitioner tenure as a teacher, resulting in her termination from employment. Petitioner was hired by the School District in August 2008 as a probationary Special Education Teacher assigned to Westlake High School in the School District. (R. 1 16) Petitioner was appointed to a three (3) year probationary period commencing on September 1, 2008 and concluding on August 31, 2011, in accordance with Education Law §§ 2509(1)(a); 2573(1)(a); 3012(1)(a); 3014(1). (R. 16) Pursuant to the Regulations of the Commissioner of Education and the District’s Annual Professional Performance Review Plan (“APPR”), teachers are required to undergo multiple observations and/or evaluations during a school year. See 8 NYCRR §100.2(o); see also Education Law §3012-c. During the course of the 2008-2009 school year, Petitioner was observed a total of four (4) times, twice by Principal Frank Viteritti (R. 26, 31), and twice by Assistant Principal Bruce Ferguson. (R. 23, 28) Although the general rating of Petitioner was that she had satisfactory skills, there were several noted areas that Petitioner needed to improve upon. For example, Vice Principal Ferguson noted in his October 2008 evaluation that Petitioner needed “to seek out new methods of differentiating instruction so as to accommodate a variety of student learning styles.” (R. 24) Additionally, Vice 1 References to “R” are to the relevant pages in the Record on Appeal. - 4 - Principal Ferguson, in his April 2009 evaluation, stated that Petitioner needed to put forth greater effort in “attempting to provide differentiation in instruction”; “to produce more novel objective-based activities designed to peak student interest and improve participation levels”; and “investigate other additional alternatives that will enhance the learning environment.” (R. 29) Notwithstanding the foregoing areas of needed improvement, the District continued Petitioner’s employment in the 2009-2010 school year. Petitioner was observed during the 2009-2010 school year, again for a total of four (4) times by Assistant/Interim Principal, Bruce Ferguson, and Nicole Schimpf, Director of Special Education. (R. 34-40; 87-92) Again, the general rating of Petitioner was that her skills were satisfactory; however, the administration again noted that there were several areas that Petitioner needed continued improvement. For example, Ms. Schimpf noted in her April 2010 evaluation that Petitioner failed to have her students assess each other’s written work using a rubric and guidelines; Petitioner failed to utilize “wait time” after she asked a question to a student; and Petitioner failed to “plan for a focused closure activity.” (R. 92) Notwithstanding the foregoing areas of sustained need for improvement, the District continued Petitioner’s employment as a probationer in the 2010-2011 school year. - 5 - Petitioner was evaluated during the 2010-2011 a total of four (4) times by Principal Keith Schenker and Dr. Susan Guiney, Superintendent of Schools. (R. 41-65; 101-102) Principal Schenker observed Petitioner on November 8, 2010 and rated her performance on that day as “Highly Effective.” (R. 43) Shortly after conducting said observation, Principal Schenker became aware of several concerns related to Petitioner’s professionalism within the District. Specifically, Principal Schenker received complaints that Petitioner was speaking inappropriately about other teachers to parents. (R. 97-98) Due to the fact that Petitioner was in her final year of probation, Superintendent Guiney scheduled an observation of Petitioner, which is consistent with the practice in the District, wherein Superintendent Guiney observes all probationary teachers within their final year of probation. (R. 98) Said observation took place on January 19, 2011. As a result of said observation, Superintendent Guiney issued Petitioner a Classroom Observation Report. (R. 44- 65) Although Superintendent Guiney was scheduled to meet with Petitioner in a post-observation meeting shortly after the observation, Petitioner refused. In fact, the post-observation meeting needed to be rescheduled several times over the course of the following three (3) months due to Petitioner’s delay. Said delay resulted in Superintendent Guiney essentially directing Petitioner to meet for the post-observation conference which ultimately took place on April 8, 2011. (R. 45) - 6 - To date, Petitioner never signed the Classroom Observation Report issued by Superintendent Guiney. (R. 45) In the meantime, Principal Schenker was required to provide Petitioner a Mid-Year Evaluation, as per the District’s APPR Plan. Accordingly, Principal Schenker issued a Mid-Year Evaluation which was based upon Petitioner’s progress during the 2010-2011 school year. (R. 63-65) The Mid-Year Evaluation provided to Petitioner by Principal Schenker indicated that she was “developing” in many areas, was “effective” in other areas, as well as being “highly effective” in three (3) areas. Additionally, this Mid-Year Evaluation referenced some of the concerns that Principal Schenker had received about Petitioner’s professionalism. (R. 64) Specifically, Principal Schenker noted “a significant aspect of professional practice is the manner in which Ms. McGovern carries herself in all professional interactions. Her communications with families is effective with regard to her willingness to routinely communicate with them. However, those conversations, typically via e-mail, have also demonstrated her willingness to discuss with parents her perception of her colleague’s actions in relation to their child. This does not reflect the level of integrity that is expected from a professional. Additionally, this has caused tension between Ms. McGovern and several of her colleagues with potential negative consequences for the students shared between them.” (R. 64) - 7 - This Mid-Year Evaluation accurately reflected Petitioner’s performance from the start of the school year through the mid-point of the year, including those observations conducted of Petitioner by Principal Schenker and Superintendent Guiney. (R. 98-99) On April 13, 2011, Superintendent Guiney, by way of written letter, informed Petitioner that she would not be recommending Petitioner for appointment of tenure pursuant to Education Law §3031, and would advise the Board of Education at its meeting on May 18, 2011, for its review. (R. 103-114) Petitioner requested the reasons for Superintendent Guiney’s recommendation, to which she responded on May 5, 2011. (R. 66-67) Thereafter, on May 18, 2011, Superintendent Guiney did in fact recommend to the Board of Education that Petitioner be denied tenure at the conclusion of her probationary period which was duly reviewed by the Board of Education, in accordance with Education Law §3031. On June 9, 2011, Principal Schenker provided Petitioner with an End of Year Evaluation. Said Evaluation rated Petitioner “effective” in two (2) of the required domains and “developing” in two (2) of the required domains. Principal Schenker also noted within said Evaluation that Petitioner failed to submit her Self Reflection on time, as per the APPR. (R. 101-102) - 8 - Pursuant to Education Law §3031 and based upon Superintendent Guiney’s recommendation to the Board of Education denying Petitioner tenure, Petitioner’s probationary period concluded and her services with the District were terminated, effective June 30, 2011. Petitioner filed a Notice of Petition and Verified Petition on October 12, 2011. (R. 12-71) At no time did the Petitioner serve a Notice of Claim on the School District. Following submission of briefs, the Appellate Division properly reversed the Order of the lower court on the basis that the lower court erroneously waived the requirement that the Petitioner file a notice of claim prior to filing this action. Accordingly, it is respectfully requested that the Appellate Division’s ruling be affirmed and that this Court issue an Order, dismissing the action as procedurally defective. - 9 - ARGUMENT POINT I THE APPELLATE DIVISION PROPERLY REVERSED THE LOWER COURT IN THAT A NOTICE OF CLAIM IS REQUIRED AS A CONDITION PRECEDENT TO INITIATING THIS CLAIM The Appellate Division properly reversed the trial court’s ruling that the Petitioner is not subject to the requirement of Education Law §3813, which mandates that a notice of claim be served on the school district prior to initiating an action. The Appellate Division wrote: Contrary to the Supreme Court’s conclusion, the petitioner was required, pursuant to Education Law §3813(1), to serve a notice of claim within three months after her claim arose. Although the notice of claim requirement does not apply when a litigant seeks only equitable relief (see Matter of Sheil v. Melucci, 94 AD3d 766, 767- 768), or commences a proceeding to vindicate public interest (see Doyle v. Board of Educ. of Deer Park Union Free School Dist., 230 AD2d 820), here the petitioner seeks damages in the form of back pay as well as equitable relief, and has not commenced this proceeding to vindicate a public interest. Moreover, while a litigant who seeks “judicial enforcement of a legal right derived through enactment of positive law” is exempt from the notice of claim requirement (Sharpe v. Sturm, 28 Ad3d 777, 779), that exemption is inapplicable here (see Matter of Silvernail v. Enlarged City Dist. of Middletown, 40 AD3d 1004, 1005). Accordingly, service of a notice of claim pursuant to Education Law §3813(1) was a condition precedent to the maintenance of this proceeding (see Matter of Smith v. Brenner, 106 AD3d 1018; Matter of Sheil v. Melucci, 94 AD3d at 768…). (R. 112). The Appellate Division’s holding is consistent with the well-established body of law governing this matter. Moreover, Respondent submits that this Court should affirm the Appellate Division’s decision that Petitioner was required to file - 10 - a notice of claim as a condition precedent based upon: (A) the judicial history of the Court of Appeals; (B) the lower courts consistently holding that claims similar to that advanced by Petitioner are of the nature to enforce a “private interest”; (C) Petitioner’s failure to offer any relevant case law to establish that her claim should be excluded from the requirements of Education Law Section 3813(1); and (D) a review of the broad language of Education Law Section 3813(1) evidences the legislative intent to encompass all private interest actions in its notice of claim requirements. By way of background, it is undisputed that, in general, litigants bringing claims against a school district must first serve the school district with a notice of claim, pursuant to Education Law §3813. Education Law §3813(1) states in pertinent part: No action or special proceeding, for any cause whatever …shall be prosecuted or maintained against any school district …unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment. Education Law §3813(1). Failure to comply with the statutory requirements of this law, even where no prejudice results, is deemed a fatal defect. Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 547-48 (N.Y. 1983). - 11 - A. The Judicial history of the Court of Appeals confirms that Petitioner’s claims are in the nature of “private interest” and a notice of claim is a condition precedent to filing an action against the Respondent. The Judicial history of the Court of Appeals pertaining to the notice of claim requirement is instructive. In 1974, this Court recognized that there existed an exception to the notice of claim requirement opining: It appears that not all actions and special proceedings have been held to be subject to the prerequisites of subdivision 1 of section 3813. The pertinent distinction is between actions and proceedings which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest; the provisions of subdivision 1 of section 3813 are applicable as to the former but not as to the latter. Union Free School Dist. No. 6 of Towns of Islip and Smithtown v. New York State Human Rights Appeal Bd, 320 N.Y.2d 371, 379-80 (N.Y. 1974) [footnote omitted]. In Union Free School Dist. No. 6 of Towns of Islip and Smithtown, relied upon by Petitioner herein, the action sought a ruling as to whether individuals on maternity leave should be entitled to utilize accrued sick leave, with ramifications for all similarly-situated individuals. This Court found no requirement for a notice of claim under these circumstances, writing: It is true, of course, that this proceeding was triggered by the complaint of this one teacher and that the relief granted below will redound to the benefit of that teacher as well as to the benefit of other teachers similarly situated. Such circumstances cannot be allowed, however, to obscure the fact that advantages which accrue to these teachers stem not from their rights of contract or other individual entitlement but rather flow as an appropriate and intended consequence of the vindication by the division, acting on behalf of the - 12 - public, of the public’s interest in the elimination of discrimination based on sex - a public interest duly declared by legislative enactment. Id. at 380 [emphasis added]. Application of this holding clearly indicates that vindication of a public right exempts a petitioner from the notice of claim requirement codified in Education Law §3813. Petitioner’s reliance upon this decision, however, is misplaced as the factual situations are wholly distinguishable in that Petitioner herein is not seeking to vindicate a public right, rather only a private right, as will be more fully set forth below. In 1983, this Court had the opportunity to review a similar issue, but with an opposite result. In Mills v. County of Monroe, 59 N.Y.2d 307 (1983), the petitioner challenged her termination, claiming discrimination on the basis of race and national origin. Here, however, the Court found that the notice of claim was mandatory, and failure to properly serve the document fatal to the petitioner’s claim: When an employment discrimination action is brought against a county under the State or Federal civil rights statutes, the failure to timely file a notice of claim shall be fatal unless the action has been brought to vindicate a public interest or leave to serve late notice has been granted by the court. Inasmuch as plaintiff never filed a notice of claim and her action was brought to enforce merely a private right, her complaint was properly dismissed. Id. at 308-09. Further, the Court clarified the circumstances in which a notice of claim would not be required: - 13 - In the area of civil rights, this court has recognized an important exception to the notice requirement. In 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), it held that notice of claim requirements do not apply to actions brought “to vindicate a public interest.” All actions brought to enforce civil rights can be said to be in the public interest. But, actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group are deserving of special treatment. The interests in their resolution on the merits override the State’s interest in receiving timely notice before commencement of an action. Id. at 311 [citations omitted]. The Court then explained that, notwithstanding the civil rights subject matter raised in the case, the petitioner sought to vindicate a “private” right, and a notice of claim was mandatory: [I]t is clear that plaintiff’s action was not brought to vindicate a public interest, insofar as that principle would entitle her to a complete waiver of the notice requirement. Her allegations of actionable conduct on the part of the county refers only to conduct that relates to her. Although plaintiff does aver that the county had engaged generally in unlawful discriminatory practices, her action seeks relief only for her termination, which she alleges resulted from her opposition to the county’s discriminatory practices and her race and national origin. The relief she seeks is money damages for her loss of wages and damage to her reputation. Inasmuch as the disposition of plaintiff’s claim was not intended to nor could it directly affect or vindicate the rights of others, her action is properly characterized as one seeking the enforcement of private rights. Id. at 312 [citations omitted, emphasis added]. In 1996, this Court again had an opportunity to review the requirements of filing a notice of claim under Education Law Section 3813 in Cayuga-Onondaga Counties Bd. of Cooperative Educ. Services v. Comm. Of Labor of State of New - 14 - York, 89 N.Y.2d 395 (N.Y. 1996). The issues of this case involved the payment of prevailing wage for work performed at the Auburn City School District. The Commissioner of Labor issued a notice of hearing regarding the prevailing wage issue and BOCES ultimately appealed the Commissioner of Labor’s decision to the Court of Appeals claiming that a timely notice of claim was never filed with the school district. The Court opined: BOCES’ primary grounds for reversal are that the Commissioner of Labor lacked jurisdiction to make the determination herein because a timely notice of claim against BOCES in compliance with Education Law §3813(1) was never filed by the Department of Labor and because the Commissioner failed to commence formal proceedings against it through the service of notice of hearing until after the one-year Statute of Limitations of Education Law §23813(2-b) had expired. We find these arguments unpersuasive. In determining the applicability of the three-month notice of claim requirement of Education law §3813(1) to statutory or nonjudicial proceedings involving school districts, school boards and boards of cooperative educational services…our Court has distinguished between proceedings ‘which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest; the provisions of subdivision 1 of section 2813 are applicable as to the former but not as to the latter.’ The instant proceeding initiated by the Commissioner of Labor to enforce prevailing wage payment requirements for public work projects under section 220 of article 8 of the Labor Law falls well within the vindication of a public interest category, for which statutory notice of claim requirements are inapposite. - 15 - Id. at 400-01 [citations omitted, emphasis added]. The Court further stated that enforcing the statutory prevailing wage requirements not only enforces statutory and constitutional mandates, but has as its overriding goal the vindication of a public interest rather than a private one; thus, no notice of claim was required to be filed. Id. at 401 In 2012, this Court was once again presented with an issue concerning the notice of claim requirements in Education Law Section 3813(1). See Kahn v. New York City Dept. of Educ., 18 N.Y.3d 457 (N.Y. 2012). In Kahn, an employee challenged her termination as a probationary social worker, seeking only reinstatement as her relief without any request for monetary damages. See, Kahn v. Dept. of Educ. of the City of New York, 26 Misc.3d 366 (2009) The New York City Department of Education challenged Kahn’s failure to file a notice of claim citing her request to be reinstated as a “private right” requiring a notice of claim be filed prior to the commencement of any claim. The New York County Supreme Court disagreed asserting, “…a notice of claim is not required where, as here, petitioner seeks equitable relief only, namely, reinstatement to her position in the school system.” Id. at 371. On appeal, the Appellate Division, First Department confirmed the decision of the trial court concluding, “Petitioner’s claims, which are equitable in nature, are not barred by her failure to file a notice of claim pursuant to Education Law §3813(1), which is only required when money damages are - 16 - sought.” See Kahn v. New York City Dept. of Educ., 79 A.D.3d 510 (1st Dept. 2010) [citations omitted]. On appeal to this Court, the New York City Department of Education asserted several grounds for reversal, yet failed to challenge the previous ruling concerning the notice of claim. The Court of Appeals confirmed the Appellate Division decision. Interestingly, the Court of Appeals set forth in the footnotes of said decision, “In light of our disposition of this appeal, we need not reach and express no opinion as to whether a plaintiff or petitioner who seeks only equitable relief from DOE must comply with the notice-of-claim provision in Education Law §3813(1) as a precondition to suit.” See footnotes 9-10 in Kahn v. New York City Dept. of Educ., 18 N.Y.3d 457 (2012). Despite Petitioner’s repeated assertions in the instant proceeding, this Court has never concluded that individuals only seeking equitable relief in a private right action are excluded from the notice of claim requirements in Education Law Section 3813(1). Needless to say, this Court has also never concluded that individuals seeking both equitable relief in a private right action and monetary damages are excluded from the notice of claim requirements in Education Law Section 3813(1). - 17 - B. Lower courts have likewise confirmed in numerous cases that Petitioner’s claims are one of “private interest” requiring the filing of a notice of claim. Notwithstanding Petitioner’s assertion that, “our lower courts have been plagued by the issue raised herein by Ms. McGovern, to wit: when is a party exempt from the Notice of Claim requirements of New York Education Law 3813(1)” the lower courts have had numerous opportunities to apply the specific distinction set forth by the Court of Appeals. The Appellate Divisions have repeatedly required a notice of claim where an individual probationer challenges denial of tenure and discharge. See Cordani v. Board of Educ. of Hempstead, 66 A.D.2d 780 (2d Dept. 1978); reversed on other grounds, Rutigliano v. Board of Educ. of the City of New York, 176 A.D.2d 866 (2d Dept. 1991) (wherein a probationary music teacher must file a notice of claim to challenge his discharge from employment, in a claim for reinstatement and back pay); Lindsey v. Board of Educ. of Mt. Morris Central School District, 72 A.D.2d 185, FN 1 (4th Dept. 1980) (wherein a probationary teacher, claiming tenure by estoppel, needed to file a notice of claim; the action was permitted to proceed only because the Respondent waived the defense by failing to raise it at the trial court); Perlin v. South Orangetown Central School District, 216 A.D.2d 397 (2d Dept. 1995) (wherein a probationary teacher, seeking reinstatement following an alleged act of coercion to resign, must file a notice of claim); Saranac Lake Central School District and New - 18 - York State Division of Human Rights, 226 A.D.2d 794 (3d Dept. 1996) (wherein a probationer’s challenge to her discontinuance from probation, on the basis of alleged sexual harassment, required a notice of claim); Dembovich v. Liberty Central School Dist. Board of Education, 296 A.D.2d 794 (3d Dept. 2002) (wherein a probationary teacher, challenging her discontinuance from probation on the basis of procedural errors, properly filed her notice of claim); Silvernail v. Enlarged City School District of Middletown, 40 A.D.3d 1004 (2d Dept. 2007) (an action to challenge discontinuance from probation and termination of a probationary teacher did require a notice of claim); Sheil v. Melucci, 94 A.D.3d 766 (2d Dept. 2012) (in a probationary teaching assistant’s action challenging discontinuance from probation and termination, a defect in the filing of a notice of claim required dismissal without prejudice, insofar as the defect could be remedied). In another relevant case wherein a school employee was challenging his termination based upon an allegation of bad faith, the Supreme Court, Westchester County opined: Petitioner argues respondent’s affirmative defense is without merit because the cases cited by respondents emanate from the Appellate Division, Third Department, and the law in the Appellate Division, Second Department is to the contrary. A review of the relevant case law, however, demonstrates that petitioner is in error and that pursuant to provisions of Education Law §3813, as interpreted by the Appellate Division, Second Department, petitioner was required to file a notice of claim prior to the institution of this proceeding. It is well settled - 19 - that Education Law §3813(1) is a statutory condition precedent to a petitioner’s bringing of a proceeding against a school district or a board of education, and a petitioner’s failure to comply is a fatal defect mandating dismissal of the action. Angarano v. Harrison Cent. Sch. Dist., 14 Misc.3d 1217 (2007) [citations omitted]. Perhaps not surprisingly, Petitioner continuously fails to address the precedents most on point, to wit, Cordani, Silvernail, Shiel. The Respondent respectfully submits that the Appellate Division properly relied on Cordani, Silvernail, and Shiel. One overarching theme that can be seen in the history of Appellate Division decisions discussed above is that actions relying on clear statutory entitlements are actions enforcing a “public” right, requiring no notice of claim. In contrast, where an action relies on a provision of law which grants discretion, on a case-specific basis to the decision-maker, then the action is deemed to enforce a “private” right, requiring a notice of claim. 2 “A notice of claim is not a condition precedent to a special proceeding properly brought pursuant to CPLR article 78, in the nature of mandamus, seeking judicial enforcement of a legal right derived through 2 As analyzed by one trial court: “It is simply beyond cavil that a notice of claim is not a condition precedent to the commencement of a special proceeding properly brought pursuant to CPLR Article 78 seeking judicial enforcement of a clear and specific duty as defined by the Legislature of this State. Rather, and obviously implicit in the enactment of positive law … the government entity necessarily has actual knowledge of the legislatively created legal right or duty. Thus, a notice of claim would be superfluous and accordingly, is not required.” Goetschius v. Board of Educ. of the Greenburgh Eleven Union Free School District, 1996 WL 34565310 (1996) [citations omitted]. - 20 - enactment of positive law.” Speis v. Penfield Central Schools, 98 N.Y.S.2d 642, 645 (4 th Dept. 2014). For example, actions seeking to enforce tenure rights have not generally required a notice of claim. See Cowan v. Board of Educ. of the Brentwood Union Free Sch. Dist., 99 A.D.2d 831 (2nd Dept. 1984) (inappropriately relied upon by Petitioner herein as Petitioner never obtained tenure rights); see also Moraitis v. Board of Educ. Deer Park Union re Sch. Dist., 84 A.D.3d 1090 (2nd Dept. 2012). The Appellate Division, Second Department in Cowan explained the rationale for these cases most succinctly: “We have previously held that the notice of claim requirement is inapplicable to cases which seek to vindicate tenure rights which are legal rights guaranteed by State law and in the public interest.” Cowan, 99 A.D.2d at 833. Cases in which tenured teachers challenge their assignment, in contrast, have been required to file a notice of claim, presumably because enforcement of this “right” required analysis of a supervisor’s judgment, and did not trigger the larger public interest protected under the tenure laws. Matter of O’Connor v. Board of Educ. of Greenburgh-Graham Union Free Sch. Dist., 11 A.D.3d 616 (2d Dept. 2004). By contrast, cases brought by probationary employees have required a notice of claim to be filed. Cordani, Perlin, Saranac Lake, Dembovich, Angarano, Silvernail, Shiel, supra. In the absence of the clear public interest in enforcing - 21 - tenure rights, the courts have deemed such cases to be actions to enforce purely private rights, requiring the filing of a notice of claim. Failure to do so must result in the dismissal of the action. Sheil, 94 A.D.3d at 768. Actions brought by probationers have been excused from the notice of claim requirement only where they seek to enforce a legal requirement which grants no discretion to the District. See Brunecz v. City of Dunkirk Board of Educ., 23 A.D.3d 1126 (4th Dept. 2005) (wherein the Court concluded that a teacher was not required to serve a notice of claim before bringing an Article 78 proceeding to enforce his statutory right to notice of termination of his probationary period of employment). Likewise in a recent decision from the United States District Court, the Court further explained the private right analysis in stating, “the damages and relief she seeks benefit her only, and will serve no greater value to the public nor will they redress or correct a public right. For these reasons, the public right exception to the notice of claim requirement does not apply here.” Kretzmon v. Erie County, 2013 WL 636545 (2013). In addition to concluding that Petitioner is merely vindicating a private right, the Appellate Division also properly opined that a notice of claim is required pursuant to Education Law §3813(1) when, as here, Petitioner seeks damages in the form of back pay as well as equitable relief. (R. 112) Factually analogous to the instant matter is Sheil v. Melucci, supra. In Sheil, the Appellate Division - 22 - maintained that “[s]ince the petitioner seeks both equitable relief and recovery of damages, her failure to comply with the pleading requirements of Education Law § 3813(1) requires that her petition be dismissed in its entirety.” Sheil v. Melucci, supra. Similarly, Petitioner herein is seeking equitable relief by way of challenging her termination during her probationary period and also seeking recovery of damages by way of recoupment of back pay. C. Petitioner has failed to produce any relevant authority to establish that her claim should be excluded from the requirements of Education Law Section 3813(1). Petitioner ignores the precedent of this jurisdiction pertaining to the filing of a notice of claim pursuant to Education Law § 3813(1). Rather, Petitioner relies upon cases concerning General Municipal Law § 50-e’s notice of claim requirements and asserts that this Court should follow the case law relevant to General Municipal Law §50-e. Specifically, Petitioner cites to Fontana v. Town of Hempstead, 13 N.Y.2d 1134 (N.Y. 1964) wherein this Court maintained that compliance with the notice of claim requirements of General Municipal Law § 50- e were not applicable in an action brought in equity to restrain a continuing act and where demand for money damages is merely incidental to the requested injunctive relief. Fontana is distinguishable not only because it addresses the General Municipal Law notice of claim requirements, but it is limited in scope to situations brought in equity to restrain a continuing act. - 23 - Petitioner also relies upon Sammons v. City of Gloversville, 175 N.Y.2d 346 (1903) wherein this Court similarly held that a notice of claim filing requirement pursuant to a municipal charter was inapplicable prior to commencement of an action seeking to restrain a municipality from a continued trespass. See also Grant v. Town of Kirland, 10 A.D.2d 474 (4th Dept. 1960) (holding that filing of notice of claim pursuant to General Municipal Law § 50-e was not required when an action was brought in equity to restrain a continuing act). It is important to note that not only were these decisions rendered prior to the more recent aforementioned seminal Court of Appeals decisions, but these cases are governed by General Municipal Law Section 50-e and not Education Law Section 3813(1). The language of General Municipal Law Section 50-e is very limited in scope and only pertains to actions in tort (as referenced in Education Law Section 3813[2]), clearly inapposite to the instant proceeding. Further, Petitioner cites to several additional cases which fail to support her position that a notice of claim is not required where the primary relief is equitable in nature and money damages are merely incidental to the equitable relief requested. For example, as previously noted, Union Free School Dist. No.6 of the Towns of Islip, is a 1974 Court of Appeals decision wherein this Court concluded that the maternity leave issues raised were a “public interest” and therefore no notice of claim was required. Union Free School Dist., supra at 379-80. Due to - 24 - the fact that this Court concluded the issues in Union Free School District were of “public interest”, this case has no relevance to Petitioner’s instant private right claims. Likewise, Onondaga Counties is a 1996 Court of Appeals decision concluding that issues regarding prevailing wage are of “public interest” and therefore no notice of claim is required. Onondaga Counties, supra, at 400-01. Petitioner also cites to Trehy in support of her positions; however, this case can likewise be distinguished as it involves a student disciplinary proceeding wherein the claimant sought to expunge the student’s record. The school district asserted an affirmative defense that no notice of claim was filed and moved to dismiss the case. Nonetheless, the Appellate Division, Second Department concluded that because the petitioner was solely seeking to expunge the student record, a purely equitable remedy, and no monetary damages were requested, no notice of claim was required. Trehy v. Commack Union Free School, 93 A.D.2d 891 (2d Dept. 1983). Petitioner also relies upon Kahn; however, as previously noted Petitioner fails to cite to the Court of Appeals decision in this matter wherein this Court expressly refused to address whether a claimant seeking primarily equitable relief is excluded from the requirements of Education Law Section 3813(1). Petitioner also cites to Jones, in support of her position; yet, Jones is similarly distinguishable in that it dealt with a class of retired school employees who commenced an action - 25 - concerning their retiree health insurance costs. In Jones, the petitioners were seeking an injunction from increasing their health costs, along with a declaratory judgment on the issue. No monetary damages were requested by the retirees. The Appellate Division, Fourth Department, clarified that no notice of claim was required because the petitioners were seeking to enforce a legal right, as opposed to a private right. See Jones v. Bd. of Educ. of Watertown City School Dist., 30 A.D.3d 967, 970 (4th Dept. 2006); see also Speis, supra at 645. Petitioner cites no other legal authority to support her position that an employee pursuing to vindicate a “private interest” seeking monetary damages incidental to the primary claim for equitable relief, is exempt from the requirements of Education Law Section 3813(1). Having established this distinction, there is no rational conclusion other than that the Petitioner in this case was obligated to file a notice of claim. Petitioner is seeking to vindicate only a private right and is seeking both equitable relief and recovery of damages pursuant to Education Law §3813(1). Petitioner’s September 27, 2011, Verified Petition asserted a single theory: 26. The decision to terminate Petitioner and not grant her tenure was irrational, arbitrary, capricious, and not based on substantial evidence. 27. By reason of the foregoing, petitioner is entitled to a judgment annulling the decision to discontinue her probationary status and be reinstated with tenure and back pay. - 26 - (R. 20 at ¶¶ 26-27). This single claim was prefaced by a number of factual assertions in the petition, all gauged to assert competence on the part of the Petitioner and “bad faith” on the part of the School District in its determination to deny tenure to Petitioner. Were the Petitioner to prevail on these merits, the benefit of the decision would be enjoyed solely by the Petitioner; how, then, can the Petitioner claim her action advances a “public” right? The facts of this case, most analogous to those of Cordani, Saranac Lake, Angarano, Silvernail and Shiel, evidence an effort to claim a “private” right along with damages by way of back pay, and as such, the Petitioner was obligated to file a notice of claim as a condition precedent to proceeding in court. The consequence of her failure to do so, as was the result in Cordani, Saranac Lake, Angarano, Silvernail and Shiel, is dismissal of the action. Accordingly, Respondent respectfully requests that the Appellate Division’s ruling be affirmed, ultimately dismissing Petitioner’s challenge to the Superintendent of School’s recommendation to deny tenure. - 27 - D. Education Law Section 3813(1) evidences the legislative intent to encompass all private interest actions in its requirement to file a notice of claim. The broad sweeping language of Education Law Section 3813(1) cannot be disregarded when reviewing the issue at hand. As previously set forth, Education Law Section 3813(1) states: No action or special proceeding, for any cause whatever …shall be prosecuted or maintained against any school district …unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment. Courts have routinely held that the purpose of this section is to give school districts prompt notice of claims against it so that it can be investigated and addressed before the claims are stale. Clark v. Group Plan for Employees of North Tonawanda Public Schools, 845 F.Supp. 117 (1994). The Legislature when crafting this language included the all inclusive language that, “no action or special proceeding for any cause whatever…” against a school district must be commenced with the filing of a notice of claim. This language has remained in the statute unchanged since the implementation of Education Law Section 3813. In 1963, the Legislature amended the statute, adding a section for tort claims. (L. 1963, c. 660, §3). This new section required that all tort claims comply with the - 28 - notice of claim requirements set forth in General Municipal Law Section 50-e. In 1978, the Legislature again made modification to the statute, this time making minor modification but leaving the all inclusive notice of claim language intact. (L. 1978, c. 346, §1). Shortly thereafter, in 1981, the Legislature added two new sections (two-a and two-b) to provide for, upon application, the authority for a court to grant an extension to serve a notice of claim. (L. 1981, c. 855, §§1,2). In 1992 and 1996, the Legislature again revised Education Law Section 3813, both times adding new provisions; first for the accrual of contract claims and then for reimbursement for tuition costs. (L. 1992, c. 387, §1; L. 1996, c. 474, §145). Despite all of these modifications to the statute, the Legislature never amended the broad sweeping language that, “no action or special proceeding, for any cause whatever” against a school district must be commenced with a notice of claim. Tellingly, the Court of Appeals has consistently confirmed the intent of Education Law Section 3813(1), providing for a limited exception when a petitioner is seeking to vindicate a public interest versus a private interest. Respondent respectfully submits that no other exception is contained within the language of Education Law Section 3813(1) nor contemplated by the Legislature. Petitioner asserts that her claim is excluded from the notice of claim requirements set forth in Education Law Section 3813(1) because the monetary relief requested is only incidental to the equitable relief of reinstatement she - 29 - demands. Respondent adamantly disagrees with this argument. Claims commenced under Article 78 of the Civil Practice Law and Rules are “special proceedings.” Civil Practice Law and Rules Section 7806 explicitly limits relief in Article 78 special proceedings to equitable relief and only those monetary damages which are incidental to the primary relief sought by Petitioner. See CPLR §7806. Curiously Petitioner fails to address that they only relief available to her in an Article 78 special proceeding is equitable relief and monetary damages incident to the primary relief. Accordingly, under Petitioner’s arguments all Article 78 special proceedings would be exempt from the notice of claim requirements set forth in Education Law Section 3813(1), despite the express reference to “special proceedings” in said statute. Respondent respectfully submits that the Legislature never intended to exclude Article 78 proceedings from the notice of claim requirements set forth in Education Law Section 3813(1) because had they intended to exclude all these special proceedings, the phrase “special proceedings” would not have remained in the statute. See Sandak v. Tuxedo Union School Dist. No.3, 308 N.Y. 226, 230 (1954) (wherein this Court confirms that the Legislature intends the language to be as clear as it is drafted and had the Legislature desired something different it would have explicitly so stated). Petitioner also cites to many cases which are governed by the notice of claim requirements set forth in General Municipal Law Section 50-e. Respondent - 30 - submits that such an analysis is inapplicable. General Municipal Law Section 50-e addresses tort claims. Further, Education Law Section 3813(2) was added to address tort claims against a school district and connect the notice of claim requirements to General Municipal Law Section 50-e. Had the Legislature intended that all claims against a school district be governed by General Municipal Law Section 50-e, there would have been no need in 1963 to amend Education Law Section 3813 by adding section “2” for tort claims. See Sandak, supra. As such, Respondent respectfully requests that this court dismiss Petitioner’s assertion that the requirements of General Municipal Law Section 50-e and its case law are controlling. POINT II THE COURT SHOULD DISREGARD THE NEW FACTS AND THEORIES PETITIONER ADVANCES FOR THE FIRST TIME ON THIS APPEAL The Petitioner improperly seeks to augment the record by advancing new unsupported facts and legal arguments never presented or considered by the lower courts. These new facts and theories should be set aside by this Court and the appeal dismissed. This Court has held it will not consider new facts and theories improperly interjected into a case for the first time on appeal. See First Int'l Bank of Israel, Ltd. v. L. Blankstein & Son, Inc., 59 N.Y.2d 436, 447 (1983); see also Jamindar v. Uniondale Union Free Sch. Dist., 90 A.D.3d 612, 617 (2d Dept. 2011); - 31 - see also Pile v. Grant, 41 A.D.3d 810, 811 (2d Dept. 2007); see also Miller v. Village of Wappingers Falls, 289 A.D.2d 209 (2d Dept. 2001). “The exception to the requirement that issues must be preserved for appellate review applies only where the issue is one of law which appears on the face of the record and which could not have been avoided if raised at the proper juncture.” Matarrese v. N.Y. City Health and Hosp. Corp., 247 A.D.2d 475 (2d Dept. 1998); see also Opalinski v. City of New York, 110 A.D.3d 694, 696 (2d Dept. 2013). The Petitioner does not fit into this limited exception. After nearly three years of litigation, the Petitioner proposes new facts and theories regarding the Notice of Claim requirements in that the Petitioner is now seeking to enforce her tenure rights. Petitioner’s attempt to assert this argument, for the first time on appeal to this Court, is wholly unsupported by the record. Notwithstanding Petitioner’s newly offered argument, Petitioner has not achieved tenure by estoppel as she was hired as a probationary teacher for a three (3) year term in August, 2011 and was denied tenure on June 30, 2011. “Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term.” McManus v. Bd. of Educ. of Hempstead Union Free Sch. Dist., 87 N.Y.2d 183, 187 (1995) (erroneously relied upon by Petitioner claiming that Petitioner may - 32 - seek to enforce tenure rights because she would have achieved tenure by estoppel if she prevails herein). Petitioner’s argument is not only factually inaccurate, it is wholly illogical. The Appellate Division properly held that tenure by estoppel is inapplicable herein when it posited that “while a litigant who seeks ‘judicial enforcement of a legal right derived through enactment of positive law’ is exempt from the notice of claim requirement, that exemption is inapplicable here” McManus v. Bd. of Educ. of Hempstead Union Free Sch. Dist., 87 N.Y.2d at 187 [internal citations omitted]. Accordingly, it is respectfully submitted that this Court should disregard the Petitioner’s new version of the facts as a new matter outside the record on appeal. There is simply no evidentiary record in this case that supports the Petitioner’s statements on appeal. Moreover, even upon consideration, Petitioner has not obtained tenure by estoppel. - 33 - CONCLUSION Based upon the Record on Appeal and for the reasons set forth herein, the Respondent respectfully requests that the New York State Court of Appeals affirm the Appellate Division’s Decision and Order dismissing this proceeding in its entirety and grant such additional relief as the Court deems appropriate. In the event that such decision is reversed, it is respectfully submitted that the balance of the issues preserved for appeal be remanded to the Appellate Division for determination. Dated: Harrison, New York August 27, 2014 Respectfully submitted, INGERMAN SMITH, L.L.P. By: ________________________ Emily J. Lucas, Esq. Attorneys for the Respondent- Respondent Board of Education of the Mount Pleasant Central School District 550 Mamaroneck Avenue, Suite 209 Harrison, New York 10528 (914) 777-1134