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March 19, 2004.


The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

I. Introduction
Plaintiff commenced this civil rights action against the New York City Board of Education (the "Board"), the Teachers' Retirement System of the City of New York (the "TRS"), and the City of New York (the "City") (collectively, the "Defendants"), asserting claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the Rehabilitation Act, 29 U.S.C. § 791 et seq., the Public Health Services Act, 42 U.S.C. § 300bb et seq., the anti — discrimination provisions of New York's Executive Law §§ 296 et seq. and the New York City Administrative Code §§ 8-101 et seq., and for breach of contract. Plaintiff moves for an Order pursuant to New York Education Law § 3813 granting her leave to file a late notice of claim, or to estop Defendants from Page 2 asserting as a defense plaintiff's failure to file a notice of claim. The parties have consented to my exercising plenary jurisdiction in this matter pursuant to 28 U.S.C. § 636(c).

For the reasons set forth below, plaintiff's motion is granted.

 II. Facts

  A. Background

  Plaintiff was hired by the Board as a teacher in 1967 and began working as a guidance counselor in 1970 (Affidavit of Rita Bloom, sworn to June 3, 2003 ("Bloom. Aff."), ¶ 3). In 1990, plaintiff became ill after she was exposed to toxic fumes from renovation work taking place at the school to which she was assigned (Bloom Aff. ¶ 3). Specifically, plaintiff developed an airway disease that affects her breathing and respiratory functions (Bloom Aff. ¶ 3). To continue working, plaintiff required a well — ventilated work environment (Bloom Aff. ¶ 3).

  Pursuant to its by — laws and a collective bargaining agreement ("CBA") with the United Teacher's Federation, the Board provides line — of — duty injury pay to teachers with disabilities caused by a condition at work. Line — of — duty benefits are payable until the disability can be reasonably accommodated (Bloom Aff. ¶¶ 4-5). Under the by — laws, the Board's Medical Bureau, whose Director is Dr. Jacobson, determines whether a disability is Page 3 caused by a condition at work (Bloom Aff. ¶ 5). Under the CBA, this determination must be made by a medical arbitrator, whose decision is "final and binding."*fn1 (Bloom Aff. `¶ 5).

  In 1991, plaintiff submitted "several inquiries, requests and demands" for the Board to abide by its by — laws and the CBA and provide her with either line — of — duty injury pay or a reasonable accommodation for her disability (Bloom Aff. ¶ 7). Plaintiff alleges that the Board "unreasonably delay [ed]" in deciding plaintiff's claims and cites the following evidence in support of this contention (Bloom Aff. ¶ 7).

  On November 22, 1991, plaintiff's counsel, Wayne N. Outten, Esq., sent a letter to the Board demanding that the Board accommodate plaintiff's disability with a properly ventilated work place or provide her with line — of — duty injury pay (Letter of Wayne N. Outten, Esq., to the Board ("Outten Ltr."), at 4-5, annexed as Ex. E to Bloom Aff.). In addition, on January 3, 1992 and January 23, 1992, plaintiff sent letters to Dr. Jacobson (Bloom Aff. ¶ 8; Plaintiff's Letter to Dr. Jacobson, dated January 3, 1992 ("Pl.'s 1/3/92 Ltr."), annexed as Ex. F to Bloom Aff.; Plaintiff's Letter to Dr. Jacobson, dated January 23, 1992 ("Pl.'s 1/23/92 Ltr."), annexed as Ex. F to Bloom Aff.). In these letters plaintiff advised that Dr. Jacobson, after examin — Page 4 ing plaintiff, failed to determine whether plaintiff was fit for service or entitled to line — of — duty pay (Pl.'s 1/3/92 Ltr. at 1; Pl.'s 1/23/92 Ltr. at 2-3). Plaintiff asserted that Dr. Jacobson was contractually obliged to make a determination within 10 days of examination, and that her failure to do so was a violation of plaintiff's rights under the New York State and New York City Human Rights Laws, New York State Civil Rights Law and Federal Law because it perpetuated the discrimination that she was being subjected to as the result of her disability (Pl.'s 1/3/92 Ltr. at 1).

  On September 30, 1992, the Board's Chancellor issued an order stating that plaintiff's injury was "sufficient to satisfy the criteria under [the by — laws] that an injury in the line of duty be the result of an accident or incident which could not be avoided with ordinary care or was the result of an untoward incident, extraordinary circumstance or dangerous condition." (Bloom Aff. ¶ 6). Plaintiff was awarded line — of — duty injury pay for work that she had missed through June 1992 (Bloom Aff. ¶ 6). In an effort to accommodate plaintiff's disability, this order also directed that plaintiff be assigned to a new school (Bloom Aff. ¶ 9). Twenty days after issuance of this order, however, the Board's Medical Arbitrator, Dr. Daum, concluded that plaintiff was not fit to work at that time (Bloom Aff. ¶ 9). Dr. Daum had been appointed Medical Arbitrator by Dr. Jacobson and as — Page 5 signed all decision — making authority (Bloom Aff. ¶ 9). Dr. Daum did, however, agree that plaintiff's illness was the result of an injury incurred in the line of duty (Bloom Aff. ¶ 9). Pursuant to Dr. Daum's findings, plaintiff ceased working (Bloom Aff. ¶ 9).

  The Board never rejected plaintiff's line — of — duty injury status and never rejected Dr. Daum's finding that plaintiff was not fit to work (Bloom Aff. ¶ 10). The Board maintained plaintiff on active employment status and active pay status (Bloom Aff. ¶ 10). As each paycheck to plaintiff was issued, however, it was canceled, and plaintiff never actually received any paychecks (Bloom Aff. ¶ 10). Plaintiff continued to receive credit for pension service, pay raises and medical insurance (Bloom Aff. ¶ 10). Plaintiff believed that her "benefits of employment" "continued to accrue" and that the Board would find her an appropriate position (Bloom Aff. ¶¶ 2, 10).

  In 1994, plaintiff was informed by her insurance carriers that the Board had placed her on unpaid leave of absence (Bloom Aff. ¶ 11). Plaintiff immediately called the school district where she was employed and spoke to Lorraine Smith, the Personnel Director (Bloom Aff. ¶ 11). Smith allegedly informed plaintiff that she was entitled to line — of — duty injury pay until a work accommodation for her disability could be made (Bloom Aff. ¶ 11). Smith also allegedly said that the Board could not place Page 6 plaintiff on a leave of absence unless she was paid (Bloom Aff. ¶ 11). According to plaintiff, however, Smith subsequently failed to return plaintiff's "follow — up telephone calls" (Bloom Aff. ¶ 11). Plaintiff later learned, on an unspecified date, that she had been retroactively returned to active pay status, and payroll records reveal uninterrupted active payroll and employment status*fn2 (Bloom Aff. ¶ 11).

  In 1995, unbeknownst to plaintiff, Elizabeth Gill, an employee in the Board's Office of the Chancellor, issued a memorandum to Thomas P. Ryan, Executive Director, and David Bass, Deputy Executive Director concerning rescheduling an arbitration for plaintiff's claim for line — of — duty pay (Ex. K to Bloom. Aff.). The memorandum states "This is an injury in the line of duty matter. Employer Board of Education's potential liability is great. . . . Ms. Bloom is claiming time back to 1991." (Ex. K to Bloom Aff.). The memorandum concludes by stating, "This case, if let to linger, will surely impair the employer's ability to put in either a defense to Ms. Bloom's claim or negotiate a reasonable settlement" (Ex. K to Bloom Aff.).

  On December 10, 1997, the Board informed plaintiff that her employment had been terminated (Bloom Aff. ¶ 13). After the Board informed plaintiff that she had been terminated, however, Page 7 it told her that she "had to request a leave without pay or return to service by September 1999, or face termination of employment" (Bloom Aff. ¶ 14). As a result of these conflicting communications, plaintiff claims that she was "absolutely uncertain about [her] employment status" (Bloom Aff. ¶ 14). Plaintiff's counsel immediately responded with a letter stating that plaintiff "wanted to return to work but that [she] needed an accommodation for [her] continued employment" (Bloom Aff. ¶ 14). In 2000, after commencement of the instant action, the Honorable Harold Baer, United States District Judge, ordered that Defendants explore the possibility of providing plaintiff with a position as a guidance counselor; no ...

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