Opinion
2015–03369 Index No. 9165/14
05-02-2018
In the Matter of Christopher FOTOPOULOS, appellant, v. BOARD OF FIRE COMMISSIONERS OF the HICKSVILLE FIRE DISTRICT, et al., respondents.
Louis D. Stober, Jr., LLC, Garden City, N.Y. (Albina Kataeva of counsel), for appellant. Siler & Ingber, LLP, Mineola, N.Y. (Jeffrey B. Siler of counsel), for respondents.
Louis D. Stober, Jr., LLC, Garden City, N.Y. (Albina Kataeva of counsel), for appellant.
Siler & Ingber, LLP, Mineola, N.Y. (Jeffrey B. Siler of counsel), for respondents.
SHERI S. ROMAN, J.P., HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Randy Sue Marber, J.), entered January 26, 2015. The judgment denied the petition, inter alia, to compel the respondents to reinstate the petitioner to his former positions with all of the benefits of his employment including back pay, and dismissed the proceeding.
ORDERED that the judgment is affirmed, with costs.
The petitioner was a volunteer firefighter with the respondent Hicksville Fire Department (hereinafter the Department) and a dispatcher employed by the respondent Hicksville Fire District (hereinafter the District), working under the direction of the respondent Board of Fire Commissioners of the Hicksville Fire District (hereinafter the Board) until he was allegedly forced to resign from both of these positions by coercion and duress. The petitioner attempted to withdraw his resignation, but was advised that the Department, the District, and the Board (hereinafter collectively the respondents) refused to accept the withdrawal of his resignation.
The petitioner thereafter commenced this CPLR article 78 proceeding seeking, inter alia, to compel the respondents to reinstate him to his former positions as a dispatcher and a volunteer firefighter with all of the benefits of his employment including back pay. The respondents opposed the petition, arguing, among other things, that the petition should be denied since the petitioner failed to file a notice of claim pursuant to General Municipal Law § 50–e. By judgment entered January 26, 2015, the Supreme Court denied the petition and dismissed the proceeding, determining, inter alia, that the petitioner's failure to file a notice of claim precluded the maintenance of this proceeding. The petitioner appeals. In general, "[t]he service of a notice of claim is a condition precedent to the maintenance of an action against a public corporation to recover damages for a tortious or wrongful act" ( Matter of Rattner v. Planning Commn. of Vil. of Pleasantville, 156 A.D.2d 521, 525, 548 N.Y.S.2d 943 ; see General Municipal Law § 50–e ; Conklin v. Town of Ramapo, 214 A.D.2d 639, 640, 624 N.Y.S.2d 646 ). However, the notice of claim requirement does not apply when a litigant seeks only equitable relief (see Matter of Sheil v. Melucci, 94 A.D.3d 766, 767–768, 941 N.Y.S.2d 265 ; Civil Serv. Empls. Assn., Inc. v. Board of Educ. of City of Yonkers, 87 A.D.3d 557, 558, 927 N.Y.S.2d 921 ; Kahn v. New York City Dept. of Educ., 79 A.D.3d 521, 522, 915 N.Y.S.2d 26, affd 18 N.Y.3d 457, 940 N.Y.S.2d 540, 963 N.E.2d 1241 ), or commences a proceeding to vindicate a public interest (see Doyle v. Board of Educ. of Deer Park Union Free School Dist., 230 A.D.2d 820, 820, 646 N.Y.S.2d 842 ). Moreover, a litigant who seeks "judicial enforcement of a legal right derived through enactment of positive law" is exempt from the notice of claim requirement ( Matter of Sharpe v. Sturm, 28 A.D.3d 777, 779, 814 N.Y.S.2d 229 ; see Matter of Piaggone v. Board of Educ., Floral Park–Bellrose Union Free School Dist., 92 A.D.2d 106, 108, 459 N.Y.S.2d 629 ).
Here, since the petitioner seeks both equitable relief and the recovery of damages in the form of back pay, the filing of a notice of claim within 90 days after his claim arose was a condition precedent to the maintenance of this proceeding (see General Municipal Law § 50–e ; Matter of Idolor v. Board of Coop. Educ. Servs. of Nassau County, 134 A.D.3d 938, 20 N.Y.S.3d 905; Matter of McGovern v. Mount Pleasant Cent. Sch. Dist., 114 A.D.3d 795, 796, 980 N.Y.S.2d 522, affd 25 N.Y.3d 1051, 12 N.Y.S.3d 11, 33 N.E.3d 1280 ; Matter of Smith v. Brenner, 106 A.D.3d 1018, 965 N.Y.S.2d 368 ).
In light of our determination, the petitioner's remaining contentions need not be reached.
ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.