The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Plaintiff Stephanie Bucalo ("Bucalo" or the "Plaintiff") brings
this action against the defendant East Hampton Union Free School
District (the "District" or the "Defendant") asserting claims for
age discrimination and retaliation under the Age Discrimination
in Employment Act, 29 U.S.C. §§ 621-34 (2004) and the New York
Human Rights Law, N.Y. Exec. Law §§ 290-301 (McKinney's 2004).
Presently before the Court is the Plaintiff's motion for leave to
present a formal notice of claim to the Defendant.
The Plaintiff was employed by the District from July 2002 to
June 2003 as a part time teacher of reading and science at the
John M. Marshall Elementary School. The Plaintiff alleges that
when she was offered the position, as an inducement for her to
accept, the District Assistant Superintendent Anthony Correale
told her that her librarian credentials were extremely marketable
and that he looked forward to offering her a librarian position
if one were to become available. Shortly after accepting the
teacher position, Bucalo learned that the elementary school
librarian had retired.
In August 2002, Bucalo applied for the vacant elementary school
librarian position but it was awarded to another younger woman.
Sometime later that year, the elementary school librarian
position again became vacant and Bucalo submitted another
application. The Plaintiff alleges that in her second application
for the librarian position vacancy she attached a complaint to
the principal of the school, Thomas Lamorgese, in which she
stated that she believed that her age had been a factor in the
District's previous selection of a librarian. On December 16,
2002, the Plaintiff again was not selected for the position which
was awarded to a younger candidate.
In April of 2003, Bucalo alleges that she reiterated her
allegations about age discrimination to Lamorgese in an informal
meeting. In the same month, the Plaintiff was notified that she
would not be rehired for the following school year. At the end of
the school year in June of 2003, the Plaintiff was terminated as
a teacher in the District.
On July 31, 2003, counsel for the Plaintiff wrote to the
Superintendent of the District alleging that the Plaintiff had
been the victim of age discrimination and retaliation. On
September 3, 2003, the Plaintiff filed a complaint with the Equal
Employment Opportunity Commission (EEOC), which was also served
on the District. On April 23, 2004, the Plaintiff commenced this
action. The Plaintiff never served a verified notice of claim
upon the District as required by section 3813(1) of the Education
Law of the State of New York for any claim under New York State
law. On June 15, 2004, the Plaintiff filed the instant motion
seeking leave of the Court to present a late notice of claim to
As a condition precedent to commencement of any action under
New York State law against a school district, New York's
Education Law § 3813(1) requires that a written verified claim be
presented to the governing body of the school district within
three months of accrual of such a claim. N.Y. Educ. Law § 3813(1)
(McKinney's 2004). The New York Court of Appeals has interpreted
the statute as follows: "The Legislature has spoken unequivocally
that no action or proceeding may be prosecuted or maintained
against any school district or board of education unless a notice
of claim has been `presented to the governing body,' and this
court may not disregard its pronouncement." Parochial Bus Sys.,
Inc. v. Bd. of Educ., 60 N.Y.2d 539, 549, 470 N.Y.S.2d 564, 569,
458 N.E.2d 1241 (1983) (citations omitted). Indeed, the New York
Court of Appeals has "always insisted that statutory requirements
mandating notification to the proper public body or official must
be fulfilled." See id. at 547-48, 470 N.Y.S.2d 564,
458 N.E.2d 1241 (citing Chesney v. Bd. of Educ., 5 N.Y.2d 1007,
185 N.Y.S.2d 263, 158 N.E.2d 125 (1959); Munroe v. Booth,
305 N.Y. 426, 113 N.E.2d 546 (1953)). Thus, a failure to present a claim
within ninety days of its accrual is a fatal defect. See id.
at 547; Bd. of Educ. of Union Free Sch. Dist. No. 2 v. State
Div. of Human Rights, 44 N.Y.2d 902, 904, 407 N.Y.S.2d 636, 637,
379 N.E.2d 163 (1978) ("Noncompliance with [the notice]
requirement likewise bars the right to the relief sought."); see
also, Pinaud v. County of Suffolk, 798 F. Supp. 913, 925
The statute at issue provides that a court may, "in its
discretion, extend the time to serve a notice of claim." N.Y.
Educ. Law § 3813(2-b). However, "[t]he extension shall not exceed
the time limited for the commencement of an action by the
claimant against any district or any such school." Id. Hence,
if the applicable statute of limitations has expired, the court
lacks jurisdiction to grant an extension. Kingsley Arms, Inc. v.
Copake-Taconic Hills Cent. Sch. Dist., 9 A.D.3d 696,
780 N.Y.S.2d 805, 807 (3d Dep't 2004); see also Stevens v. Bd. of
Educ. of McGraw Cent. Sch. Dist., 261 A.D.2d 698, 699,
689 N.Y.S.2d 730, 730 (3d Dep't 1999). "To permit a court to grant an
extension after the Statute of Limitations has run would, in
practical effect, allow the court to grant an extension which
exceeds the Statute of Limitations, thus rendering meaningless
that portion . . . which expressly prohibits the court from doing
so." Pierson v. City of New York, 56 N.Y.2d 950, 955,
439 N.E.2d 331, 333, 453 N.Y.S.2d 615, 617 (1982) (holding that a
court may not grant a late notice of claim under the Gen. Mun.
Law after the Statute of Limitations has expired).
There is a one-year Statute of Limitations for any action
brought against a school district or board of education under
section 3813(2-b) of the N.Y. Educ. Law. See Henry Boeckmann,
Jr. & Assocs. v. Bd. of Educ., Hempstead Union Free Sch. Dist.
No. 1, 207 A.D.2d 773, 775, 616 N.Y.S.2d 395, 397 (2d Dep't
1994); Rutigliano v. Bd of Educ. of City of New York,
176 A.D.2d 866, 866, 575 N.Y.S.2d 339, 340 (2d Dep't 1991). The
statute provides that "no action . . . shall be commenced . . .
more than one year after the cause of action arose." N.Y. Educ.
Law § 3813(2-b).
Nonetheless, the Plaintiff argues that the Court should
disregard this limitation and apply the three year Statute of
Limitations for discrimination actions as set forth in CPLR 214
(2). The cases that the Plaintiff relies on for this position,
e.g., Lane-Weber v. Plainedge Union Free School Dist.,
213 A.D.2d 515, 516 (2d Dep't 1995), are analogous but inapplicable
to this issue. Lane-Webber holds that actions for
discrimination are not considered tort actions and thus are not
subject to the notice of claim requirements under Gen. Mun. Law
50-e or Educ. Law 3813(2). However, the notice of claim
requirement in N.Y. Educ. Law 3813(1) and the one-year limit in
3813(2-b) clearly applies to all New York State actions or
proceedings. See Hilow v. Rome City Sch. Dist., 1994 WL
328625, at *9 (N.D.N.Y. 1994); Rutigliano, 176 A.D.2d at 866,
575 N.Y.S.2d at 340.
Here, the Plaintiff filed the instant request to serve a late
notice of claim on June 15, 2004. Viewing the facts in the light
most favorable to the Plaintiff, it appears that her cause of
action arose as late as September 2002 and December 2002 for the
age discrimination claims and June 2003 for the retaliation
claim. The only claim that arose less than one year before the
Plaintiff filed the instant motion was her claim of retaliation.
As such, the Plaintiff's application to serve a late notice of
claim is untimely with regard to her New York State cause of
action for age discrimination and the Court may only consider
whether to permit the Plaintiff to serve a late notice of claim
regarding her claim of retaliation.
In deciding whether to grant leave to serve a late notice of
claim, a court must consider: (1) whether the plaintiff has
demonstrated a reasonable excuse for her failure to serve a
timely notice of claim; (2) whether the school district acquired
actual knowledge of the essential facts of the claim within 90
days or a reasonable time thereafter; (3) whether the petitioner
was an infant, or was mentally or physically incapacitated, and
(4) whether the delay would substantially prejudice the public
corporation in maintaining its defense on the merits. N.Y. Educ
Law § 3813(2-b); see also John Doe v. Goshen Cent. Sch.
Dist., 2004 N.Y. Slip Op. 09501 at 1 (2d Dep't Dec. 20, 2004);
Riordan v. East Rochester Schools, 291 A.D.2d 922, 923,
737 N.Y.S.2d 202, 203 (4th Dept. 2002); Lopez v. Hicksville Pub.
Sch. Dist., 289 A.D.2d 381, 381, 734 N.Y.S.2d 878, 878 ...