Opinion
November 18, 1991
Appeal from the Supreme Court, Suffolk County (Doyle, J.).
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The petitioner, hired in 1986 as a probationary science teacher, was advised in May 1988 that she would not be recommended for continued employment. The petitioner was afforded an opportunity to address the respondent Wayne Williams, superintendent of schools, orally (cf., Education Law § 3031) but was formally advised by letter dated September 1, 1988, that she was dismissed pursuant to a resolution adopted August 22, 1988. Notwithstanding the statutory requirement that the respondents give her at least 30 days written notice of her discharge (see, Education Law § 3019-a), the letter provided that the petitioner's dismissal was "effective immediately". Ninety days later, on or about November 30, 1988, the petitioner, citing Education Law § 3031, served a "Notice of Claim" (see, Education Law § 3813), asserting that her services were improperly terminated "in that the [respondents] failed to give her requisite notice", and demanded salary and benefits.
On or about February 1, 1989, five months after the designated effective date of her discharge and approximately two months after service of the notice of claim, the petitioner commenced the instant proceeding seeking 60 days salary pursuant to Education Law §§ 3019-a and 3031. The appeal is from so much of a judgment as awarded the petitioner 30 days pay. The appellants contend that this proceeding is untimely.
Since this is not a proceeding to review the reasons for the petitioner's discharge, the four-month Statute of Limitations which runs from the stated effective date of discharge (see, CPLR 217; see also, Matter of Rappo v. City of N.Y. Human Resources Admin., 120 A.D.2d 339) does not bar the petitioner's claim (cf., Matter of Zunic v. Nyquist, 48 A.D.2d 378, affd 40 N.Y.2d 962). The respondents characterize this proceeding as one in the nature of mandamus to compel, for which no notice of claim is required (see, Education Law § 3813; Matter of Piaggone v Board of Educ., 92 A.D.2d 106, 108). They assert, however, that the proceeding is barred because there was no timely demand that they perform their statutory duty. We disagree.
Assuming this proceeding cannot be characterized as one at law governed by a Statute of Limitations longer than four months (see, Education Law § 3813 [2-b]; cf., Todd v. Board of Educ., 272 App. Div. 618, affd 297 N.Y. 873; cf., CPLR 103), we regard the notice of claim as an adequate demand for performance of a governmental duty so as to set the stage for a proceeding in the nature of mandamus to compel (cf., Matter of Piaggone v. Board of Educ., supra; see also, Matter of Gladding v. Board of Educ., 136 A.D.2d 636, 638). Since the petitioner commenced this proceeding within two months of that "demand", the matter is timely (cf., CPLR 217). Moreover, even if that demand were an inadequate one for mandamus purposes, commencement of the proceeding itself constituted a demand (cf., Matter of Kaye v. Board of Educ., 97 A.D.2d 794), and we cannot say that the petitioner unduly delayed interposing the demand so as to be guilty of laches. Accordingly, the judgment is affirmed insofar as appealed from. Mangano, P.J., Harwood, Eiber and O'Brien, JJ., concur.