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Gastman v. Dep't of Education of the City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 10, 2009

DOROTHY E. GASTMAN, PLAINTIFF-APPELLANT,
v.
DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Karen S. Smith, J.), entered February 28, 2008, which granted defendant's motion to renew its prior motion to dismiss the complaint and, upon renewal, granted the motion, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Moskowitz, Acosta, Freedman, JJ.

103814/07

Supreme Court properly granted defendant's motion to dismiss the complaint for failure to file a timely notice of claim (Education Law § 3813[1]). As the court held, plaintiff's unverified letters and emails to Department of Education personnel, "each addressing different aspects of her complaints," do not constitute a notice of claim (see Education Law § 3813[1]; Varsity Tr., Inc. v Board of Educ. of City of N.Y., 5 NY3d 532 [2005]; Parochial Bus Sys., Inc. v Board of Educ. of City of N.Y., 60 NY2d 539, 547 [1983]). In any event, such correspondence was not presented to defendant's governing body within three months after the accrual of plaintiff's discrimination claims as required by the statute (see Pinder v City of New York, 49 AD3d 280 [2008]). Plaintiff's application for leave to file a late notice of claim made beyond the one-year statute of limitations must be denied as untimely (see Education Law § 3813[2-b]; Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367, 373-374 [2007]).

We have reviewed plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090310

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