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