Opinion
0103814/2007.
September 7, 2007.
DECISION AND ORDER
Defendant's motion to dismiss the complaint herein is denied.
Plaintiff brought this action seeking monetary damages for alleged discrimination against her based upon her hearing disabilities in violation of; ". . . Section 296 of the New York State Human Rights Law and Section 8-107 of the New York City Human Rights Law" (Complaint, Paragraph Eighth). In her complaint, plaintiff alleges that she lost her hearing as a result of excessive noise in her classrooms over the years she was engaged in her occupation as a High School English teacher. Plaintiff further alleges that, although she was examined and found to be entitled to a reasonable accommodation for her hearing loss, the accommodation was never provided. Instead, plaintiff alleges she was harassed and forced to retire on a non-work related disability pension even though her disability was work related.
Defendant now moves to dismiss the complaint contending that plaintiff has failed to file a Notice of Claim as required by Education Law § 3813 and that plaintiff's claim is barred by a one year statute of limitations. Plaintiff opposes the motion contending that she was forced to retire in April of 2006, she filed her complaint in March of 2007 so that it is timely and no notice of claim is necessary because her action seeks to vindicate a public interest in; 1) requiring the New York City Department of Education to comply with New York State and New York City Human Rights Laws as well as the Americans with Disabilities Acts and 2) allowing experienced teaching professionals to continue to engage youth in the education process.
Although, in its unsworn Memorandum of Law, defendant attempts to argue issues of fact, the only sworn statement of fact defendant has provided is an affidavit by an individual who has searched defendant's records and found that no Notice of Claim has been filed with respect to claims asserted by plaintiff herein. Additionally, defendant has failed to include a copy of the complaint in its moving papers. Although this defect has been cured by plaintiff and plaintiff's papers acknowledge that no Notice of Claim has been filed, the complaint alone does not contain sufficient information for the court to conclude that, without the filing of a Notice of Claim, no viable cause of action has been stated. Depending upon the circumstances ultimately determined to exist, this action; 1) may be governed by a one year statute of limitations (see Education Law § 3813), 2) may require a Notice of claim (see Sangermano v Board of Cooperative Educational Services of Nassau County, 290 AD2d 498 [2nd Dept, 2002]), 3) may be governed by a three year statute of limitations (see Lane-Weber v Plainedge Union Free School District et al, 213 AD2d 515 [2nd Dept, 1995]), and/or 4) may not require the filing of a Notice of Claim (see Lane-Weber v Plainedge Union Free School District et al, 213 AD2d 515 [2nd Dept, 1995] and Board of Education of Enlarged Ogdensburg City School District v Wagner Construction Corp., 45 AD2d 63 [3rd Dept, 1974], affd., 37 NY2d 283). The court cannot engage in speculation to compensate for the absence of adequate, properly presented, factual information in order to reach the conclusion desired by the defendant. Accordingly, it is;
It is also noted that, if the action is governed by a three year statute of limitations and requires a Notice of Claim, plaintiff may still move for leave to file a late Notice of Claim.
ORDERED that defendant's motion to dismiss this action is denied.
The foregoing constitutes the decision and order of this court.