Opinion
March 2, 1998
Appeal from the Supreme Court, Westchester County (LaCava, J.).
Ordered that the order and judgment is reversed, on the law, without costs or disbursements, the petition is reinstated, the petitioner's motion to strike two of the respondents' affirmative defenses is granted, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings.
Contrary to the Supreme Court's determination, a notice of claim pursuant to Education Law § 3813 was not a condition precedent to the commencement of this special proceeding (see, Matter of Lovett v. Manhasset Pub. Schools, 245 A.D.2d 455; Matter of Piaggone v. Board of Educ., 92 A.D.2d 106, 108; Parochial Bus Sys. v. Board of Educ., 60 N.Y.2d 539, 548). Accordingly, the Supreme Court should have granted the petitioner's motion to strike the respondents' two affirmative defenses which alleged that the petitioner's claim was barred due to her failure to comply with the notice requirements set forth in Education Law § 3813.
Sullivan, J. P., Friedmann, Florio and Luciano, JJ., concur.