Opinion
300452/2017
02-09-2018
Catia POVEDA v. NEW YORK CITY DEPARTMENT OF EDUCATION
For defendant : Corp. Counsel City of New York (Leora R. Gruska, Esq.) (movant) For plaintiff: Levine & Blitt, PLLC.
For defendant : Corp. Counsel City of New York (Leora R. Gruska, Esq.) (movant)
For plaintiff: Levine & Blitt, PLLC.
Mary Ann Brigantti, J.
The following papers numbered 1 to _5_ Read on this motion, _ DISMISSAL
Noticed on August 31, 2017 and duly submitted on the Motion Calendar of October 5, 2017:
PAPERS NUMBERED
Notice of Motion—Exhibits and Affidavits Annexed 1,2
Answering Affidavit and Exhibits (Cross–Motion) 3,4
Answering Affidavit and Exhibits 5
Affidavits and Exhibits (Pl. Reply)
Pleadings—Exhibit
Stipulation(s)—Referee's Report—Minutes
Filed Papers
Memoranda of Law
Upon the foregoing papers, the defendant New York City Department of Education ("Defendant") moves for an order dismissing the complaint of the plaintiff Catia Poveda ("Plaintiff") pursuant to CPLR 3211(a)(5) and (a)(7), on the grounds that (1) Plaintiff has failed to comply with applicable notice of claim requirements, a necessary condition precedent to commencing this action, and (2) that any claim that accrued prior to February 22, 2016 is time-barred by the applicable statute of limitations, and (3) that the complaint otherwise fails to state a cause of action. Plaintiff opposes the motion.
I. Background
Plaintiff was a teacher formerly employed by Defendant. Plaintiff's complaint alleges that throughout the 2012–2013 school year she was subjected to continual harassment by another teacher regarding her religious headscarf. Plaintiff alleges that on or about June and September 2013, she verbally complained to her assistant principal and principal regarding this conduct, but these individuals took no action. Plaintiff thereafter lodged a formal complaint with the Office of Special Investigations regarding the teacher's harassing conduct. Plaintiff alleges that her union representative later told her that she "shouldn't have complained to OSI." In the months that followed, Plaintiff was allegedly subjected to "numerous unfounded and arbitrary disciplinary warnings, disciplinary letters and was forced to attend disciplinary meetings" with the principal and assistant principal (Complaint at Par. 27). Following a return from medical leave, she was subject to four more "disciplinary letters relating to unfounded events previously addressed by the administration" (Complaint at Par 29). On December 16, 2013, she received a letter containing allegations of corporal punishment stemming from her conduct that "allegedly occurred in the afternoon of December 16, 2013—a time in the future." Plaintiff alleges that she was not assigned to work, and did not work in the classroom where the alleged corporal punishment took place on the date and time alleged. Defendant nevertheless determined that Plaintiff administered corporal punishment against a child. Plaintiff was thus placed on unpaid academic probation in January 2014 and terminated by Defendant in March 2014. Plaintiff claims that on November 2, 2016, she re-applied for security clearance with Defendant so that she could pursue employment there. On or about November 29, 2016, Defendant denied her application "based upon the same reasoning for [Plaintiff]'s termination in March 2014." Plaintiff asserts causes of action against Defendant for hostile work environment and retaliation in violation of State and City Human Rights Law.
Defendant moves to dismiss the complaint on the ground that Plaintiff failed to file a notice of claim within 90 days of the claims' accrual as required by New York Education Law § 3813(1). Defendant also seeks dismissal of any claims that accrued more than a year prior to the date she filed her summons with notice—February 22, 2017—because such claims are barred by the one-year statute of limitations that applies to State and City Human Rights Law claims against Defendant ( Education Law § 3813[2–b] ). Defendant also seeks dismissal of Plaintiff's remaining claim that is not time-barred because it fails to sufficiently allege a cause of action for retaliation under State and City Human Rights Law. Specifically, Defendant argues that Plaintiff did not offer any factual allegations to link Defendant's decision to deny her security clearance to Plaintiff's alleged protected activities.
Plaintiff opposes the motion. Plaintiff initially admits that her claims that accrued prior to February 22, 2016 are untimely. Plaintiff opposes Defendant's motion to dismiss for failure to serve a notice of claim, and requests leave to serve a late notice of claim with respect to her surviving 2016 claims. Plaintiff argues that Defendant had timely actual knowledge of Plaintiff's claims arising after February 22, 2016. Plaintiff relies on a letter her counsel wrote to Defendant in March 2014 detailing her claims against Defendant that now appear in the complaint. She asserts that this letter establishes Defendant's actual knowledge of facts underlying Plaintiff's claims of discrimination and retaliation in her employment. Plaintiff further notes that her summons with notice was filed within 90 days after Defendant upheld the denial of her application for security clearance. Therefore, Defendant had actual knowledge of this action and cannot allege that it would be prejudiced by a late notice of claim. Plaintiff further argues that she has stated a cognizable claim of retaliation under State and City Human Rights Law, because, inter alia , Defendant used prior retaliatory actions—e.g., unjustified and uncorroborated disciplinary warnings resulting in termination—to justify its denial of her security clearance. Plaintiff requests leave to replead in the event that this Court deems that her complaint fails to state a cause of action.
Defendant has submitted a memorandum of law in reply to Plaintiff's opposition. Defendant's legal contentions found therein will be addressed infra if necessary.
II. Applicable Law and Analysis
(1) Statute of Limitations Issue
Plaintiff concedes that any claims of discrimination arising before February 22, 2016 must be dismissed as time-barred. New York Education Law § 3813(2–b) provides that a claim against the department of education must be commenced within one year after the cause of action arose. This provision applies to causes of action predicated upon violations of State and City Human Rights Law (see Amorosi v. South Colonie Indep. Cent. School Distr. , 9 NY3d 367, 369–73 [2007] ). Since Plaintiff did not file her summons with notice until February 22, 2017, any claims arising before February 22, 2016 must be dismissed.
(2) Failure to Serve a Notice of Claim
Defendant asserts that this matter must be dismissed because Plaintiff failed to serve it with a notice of claim. New York Education Law § 3813(1) provides that a plaintiff must file a notice of claim within three months of the accrual of any claim against the department of education. Plaintiff concedes that she did not serve the required notice, but she requests leave to serve a late notice of claim pursuant to General Municipal Law § 50–e(5). Plaintiff contends that she should be allowed to file a late notice of claim because Defendant had actual knowledge of the material facts constituting her claim within the statutory time frame. Soon after she was terminated, on March 12, 2014, Plaintiff's attorney sent a letter to Defendant detailing the claims that are found within her complaint. Plaintiff's request for security clearance was denied on November 29, 2016, and her appeal of that decision was denied by letter dated December 23, 2016. Plaintiff then filed a summons with notice on February 22, 2017, asserting general claims of unlawful discriminatory conduct and retaliation. Defendant was served with the summons with notice March 15, 2017, and Plaintiff's complaint was filed in May 2017. Plaintiff asserts that the foregoing establishes that Defendant had knowledge of the essential facts constituting her claim within 90 days after the cause of action arose, and Defendant will suffer no prejudice by her delay because it has been aware of Plaintiff's intention to litigate for years.
At the outset, this Court finds that Plaintiff's request for permission to serve a late notice of claim is procedurally defective. Education Law § 3812(2–a) permits an extension of time to serve a notice of claim "upon application" (see also General Municipal Law § 50–e[5], [7] ). Plaintiff here did not make any "application" for leave to serve a late notice of claim, for example, in the form of a cross-motion. Plaintiff simply makes the request within the affirmation of her counsel submitted in opposition to the dismissal motion. The First Department recognized in Kellogg v. Office of Chief Med. Examiner of City of New York that a request to file a late notice of claim under General Municipal Law § 50–e(5) found in the wherefore clause of a complaint does not constitute an "application" within the meaning of the statute ( 24 AD3d 376, 379 [1st Dept. 2005] ). In so holding, the Court noted that "[t]here is simply no mechanism in the CPLR for entertaining a request to file a late notice of claim independent of motion seeking such relief" ( Id. at 379 ). Plaintiff here made no such motion. Furthermore, Plaintiff did not submit a proposed notice of claim in support of her request, which alone is a sufficient justification to deny the requested relief (see General Municipal Law § 50–e[7] ; Bethune v. Nassau University Medical Center , 149 AD3d 798, 799 [2nd Dept. 2017] ; Grasso v. Nassau County , 109 AD3d 579, 580 [2nd Dept. 2013] ).
Even if the Court were to overlook those procedural deficiencies, Plaintiff failed to demonstrate entitlement to leave to file a late notice of claim. The statute governing extensions of time to serve a late notice of claim in these circumstances is Education Law § 3813(2–a), which allows for an extension of time to serve such a notice so long as the application for an extension is made within the one-year period of limitations on the underlying claims (see Rutgliano v. Board of Educ. of City of New York , 176 AD2d 866, 866–67 [2nd Dept, 1991] ). Factors that a court shall consider in determining whether to exercise its discretion and extend the time to serve a late notice of claim include: whether the defendant had actual knowledge of the essential facts constituting the plaintiff's claim within the 90–day period or within a reasonable time thereafter, whether the plaintiff has a reasonable excuse for failing to serve the notice of claim, and whether the delay in serving the notice of claim substantially prejudiced the district or school's defenses ( Educ. Law. § 3813[2–a] ). It is the plaintiff's burden to demonstrate the existence of these factors in order to demonstrate entitlement to the requested relief (see generally Blaze v. New York City Dept. of Educ. , 112 AD3d 428 [1st Dept. 2013] ). When evaluating an application to file a late notice of claim, the presence or absence of any one of these factor is not necessarily determinative, however "whether the [defendant] had actual knowledge of the essential facts constituting the claim is of great importance" (see Townson v. New York City Health and Hospitals Corp. , 2018 NY Slip. Op. 00607 [1st Dept. Feb. 1, 2018] [internal quotation omitted] [analyzing late notice of claim application under Gen. Municip. Law § 50–e(5) ] ).
Applying the foregoing principles to these facts, Plaintiff has failed to demonstrate entitlement to the relief requested. First, contrary to her contentions, Plaintiff has not demonstrated that Defendant had actual knowledge of the essential facts constituting her claims. Plaintiff's lone surviving cause of action stems from Defendant's denial of her application for security clearance that occurred on November 29, 2016. Plaintiff served Defendant with a summons with notice containing basic allegations of unlawful discrimination and retaliation on March 15, 2017. While this notice may have been served within a "reasonable time" after the expiration of the 90–day period (see Thomas v. City of New York , 118 AD3d 537, 538 [1st Dept. 2014] ), it nevertheless contained no factual allegations that would have put Defendant on notice that Plaintiff's claims stemmed from the 2016 occurrences (see Mehra v. City of New York , 112 AD3d 417, 418 [1st Dept. 2013] ; Gastman v. Department of Educ. of City of New York , 60 AD3d 444, 444–45 [1st Dept. 2009], citing Varsity Tr. Inc. v. Board of Educ. of the City of NY , 5 NY3d 532 [2005] ). Plaintiff was required to show that Defendant had knowledge of the essential facts underlying her legal theory or theories upon which liability is predicated (see Hampson v. Connetquot Cent. School Dist. , 114 AD3d 790 [2nd Dept. 2014] ; Munro v. Ossining Union Free School District , 55 AD3d 697, 698 [2nd Dept. 2008] ; see also Townson v. New York City Health and Hospitals Corp. , 2018 NY Slip. Op. 00607 ). Plaintiff's summons with notice did not contain any factual allegations, and Plaintiff did not file her summons and complaint until May 2017.
Furthermore, Plaintiff cannot rely on a letter her counsel wrote to Defendant in March of 2014. The letter outlines Plaintiff's potential claims against Defendant for the allegedly discriminatory conduct she endured in 2013 and 2014. However, Plaintiff did not file a notice of claim or otherwise commence litigation against Defendant after that letter was sent, and the statute of limitations on those claims subsequently expired. Defendant thus could have reasonably believed that Plaintiff did not intend to pursue a claim relating to those occurrences. Moreover, the basis for Plaintiff's lone timely claim is alleged retaliatory conduct that occurred in 2016, therefore the 2014 letter could not have apprised Defendant of the "essential facts" constituting her 2016 claim. An essential fact would be that Plaintiff applied for security clearance in 2016 but was denied for unlawful reasons. Although Defendant was aware that it denied Plaintiff security clearance, there is no indication that Defendant was aware of a potential claim relating to that event. Again, the March 2017 summons with notice only contains general allegations of "unlawful and discriminatory actions, including hostile work environment, based on religion...and retaliation for engaging in protected activity" with no facts supporting her claims.
Plaintiff also failed to provide any reasonable excuse for her failure to serve a notice of claim in accordance with the statute. While this, alone, would not justify denial of the relief sought, ( Renelique v. New York City Housing Authority , 72 AD3d 595 [1st Dept. 2010] ), it is relevant here when coupled with Defendant lacked actual knowledge of the essential facts constituting her 2016 claim (see e.g., Grajko v. City of New York , 150 AD3d 595 [1st Dept. 2017] ). Plaintiff also failed to carry her burden of showing a lack of prejudice, because she cannot rely on a 2014 letter to prove that Defendant were aware of potential litigation arising from 2016 occurrences.
In light of the foregoing, Defendant is entitled to dismissal of this action due to Plaintiff's failure to comply with a condition precedent to suit ( Education Law § 3813[1] ). Accordingly, this Court does not reach Defendant's remaining contention that Plaintiff's complaint fails to state a cause of action, or Plaintiff's request for leave to replead.
III. Conclusion
Accordingly, it is hereby
ORDERED, that Defendant's motion to dismiss for failure to comply with a condition precedent to suit is granted, and Plaintiff's complaint is hereby dismissed.
This constitutes the Decision and Order of this Court.