Opinion
2003-09680.
November 22, 2004.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the appeal is from an order of the Supreme Court, Richmond County (Mega, J.), dated September 30, 2003, which granted the petition.
Before: Smith, J.P., Crane, Cozier and Lifson, JJ., concur.
Ordered that the order is modified, on the law, by deleting the provision thereof granting the petition in its entirety and substituting therefor a provision granting the petition only to the extent of granting leave to serve a late notice of claim to assert causes of action alleging intentional infliction of emotional distress and negligent hiring, training, and supervision; as so modified, the order is affirmed, without costs or disbursements.
The petitioner commenced this proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim against the appellant, New York City Off-Track Betting Corporation (hereinafter the NYCOTBC), alleging, inter alia, that she suffered disability-related employment discrimination in violation of the New York Human Rights Law ( see Executive Law § 296).
Racing, Pari-Mutuel Wagering and Breeding Law § 618 requires the service of a notice of claim as a condition precedent to any action to recover damages against the NYCOTBC ( see Whitestone Shopping Ctr. v. New York City Off-Track Betting Corp., 256 AD2d 331). The rule applies to actions to recover damages for employment discrimination ( see Justy v. New York City Off-Track Betting Corp., 199 AD2d 190).
However, Racing, Pari-Mutuel Wagering and Breeding Law § 618 does not contain any provision permitting the service of a late notice of claim ( see Whitestone Shopping Ctr. v. New York City Off-Track Betting Corp., supra). Further, while General Municipal Law § 50-e (5) permits a court to entertain a motion for leave to serve a late notice of claim in a tort action within the applicable period of limitations, "a cause of action under the Human Rights Law is not categorized as a tort for notice of claim purposes" ( Picciano v. Nassau County Civ. Serv. Commn., 290 AD2d 164, 170; see Executive Law § 297).
As such, the Supreme Court should not have granted the petitioner leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5) with respect to the cause of action alleging employment discrimination.
However, as General Municipal Law § 50-e (5) permits a court to entertain a motion for leave to serve a late notice of claim in a tort action within the applicable period of limitations, the Supreme Court properly granted leave to serve a late notice of claim as to the causes of action alleging intentional infliction of emotional distress and negligent hiring, training, and supervision.