The opinion of the court was delivered by: McMahon, J.
DECISION AND ORDER GRANTING DEFENDANTS' PARTIAL MOTION FOR JUDGMENT ON THE PLEADINGS DISMISSING CERTAIN CAUSES OF ACTION AND DENYING PLAINTIFFS' CROSS-MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM
This matter is before the court on cross-motions: a motion by defendant, pursuant to Rule 12(c), for judgment on the pleadings dismissing certain causes of action, and plaintiffs' cross motion for leave to file a late notice of claim. The former motion is granted and the latter is denied.
The complaint and the answer in this matter reveal the following:
Carmen Santiago was employed as a typist in the Newburgh Free Academy (NFA), a school within defendant Newburgh Enlarged City School District (District). Santiago was injured while performing her job for the District on or about June 5, 2002. Over a year later, on July 14, 2003, Ms. Santiago had surgery for her injury. A doctor's note sent to the school on or about July 22, 2003 indicated that she was "totally disabled." She remained "totally disabled" until October 27, 2003, when Ms. Santiago advised the District that she could return to work for "light duty." A subsequent doctor's note indicated that she could not engage in "heavy lifting or repetitive activities."
Since Ms. Santiago was a typist, the District, by letter dated October 30, 2003, notified plaintiff that repetitive activities were an essential function of her position. She was also advised that heavy lifting was required, since her job required her to handle the mail for the NFA. Plaintiff did not return to work in any capacity.
By letter dated March 23, 2004, Ms. Santiago was advised that the District needed a doctor's note with her diagnosis and expected date of return. She was to supply the note by April 1, 2004. The March 23 letter advised plaintiff that if she did not provide this information, the district would deem her to have abandoned her position.
Ms. Santiago did not provide a doctor's note until June 22, 2004. The note indicated that she had been diagnosed with a bone spur, was having rotator cuff surgery in July, and would be out of work for two to four weeks.
Ms. Santiago had her rotator cuff surgery, but she did not return to work within two to four weeks thereafter -- or, indeed, at any time.
By letter dated September 13, 2004, the District notified Carmen Santiago that the Superintendent of Schools intended to submit a resolution terminating plaintiff's employment pursuant to Section 71 of the New York Civil Service Law to the Board of Education at its October 26, 2004 meeting. The notice advised plaintiff that she should respond in writing by October 5, 2004 if she could perform her job as a typist.
New York Civil Service Law Section 71 permits a civil service employer to terminate an employee who has been separated from service for more than one year by reason of disability resulting from an occupational injury.
Plaintiff did not respond to the September 13, 2004 letter. Consequently, the Superintendent submitted the resolution and the Board of Education terminated Ms. Santiago's employment on October 26, 2004. The next day, a letter notifying plaintiff of her termination, and advising her that she had a right to apply for an examination to determine her fitness to return to work within one year of the end of her disability, and explaining her Civil Service Law rights whether she was found fit or unfit in such an examination.
On or about July 20, 2005, plaintiff filed a notice of charge of discrimination and a charge of discrimination against defendants. She alleged that she was terminated on account of her race and gender.
Plaintiff received a right to sue letter from the EEOC on October 5, 2005. This action was filed on December 22, 2005. The complaint contains nine causes of action. The first three causes of action assert claims under Title VII of the Civil Rights Act of 1964. The Fourth, Fifth and Sixth causes of action assert claims under the New York State Human Rights Law. The Seventh cause of action seeks relief for First Amendment retaliation pursuant to 42 U.S.C. § 1983 (actually, the complaint says 1981, but since a First Amendment retaliation claim would have to be premised on § 1983, I will assume that the complaint contains a typographical error). The Eighth cause of action asserts that plaintiff was terminated without a hearing, in violation of her rights under the Fourteenth Amendment's Due Process Clause. And the Ninth Cause of Action seeks loss of consortium relief for Carmen Santiago's husband.
Defendants, having filed an answer to the complaint, move for judgment on the pleadings dismissing the Fourth, Fifth, Sixth, ...