Summary
allowing tortious interference claim to proceed, where the notice of claim did not use the words “tortious interference with contract, ” because “a notice of claim does not have to set forth a precise legal theory of recovery”
Summary of this case from Karlyg v. MerinoOpinion
2011-11-22
Adam MILLER, Plaintiff–Respondent, v. CITY OF NEW YORK, et al., Defendants–Appellants.
Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for appellants. Glass Krakower LLP, New York (Bryan D. Glass of counsel), for respondent.
Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for appellants. Glass Krakower LLP, New York (Bryan D. Glass of counsel), for respondent.
MOSKOWITZ, J.P., RENWICK, DeGRASSE, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered March 17, 2011, which, to the extent appealed from, as limited by the briefs, denied defendants' motion to dismiss the tortious interference with contractual rights claim asserted against defendant Olga Livanis, unanimously affirmed, without costs.
A notice of claim is required as a condition precedent to commencing an action against an employee of the New York City Department of Education (Education Law § 3813[2]; General Municipal Law § 50–i), when, as in this case, the conduct complained of was engaged in as part of defendant's employment or in the scope of her employment ( Radvany v. Jones, 184 A.D.2d 349, 585 N.Y.S.2d 343 [1992]; see also Hale v. Scopac, 74 A.D.3d 1906, 903 N.Y.S.2d 642 [2010]; DeRise v. Kreinik, 10 A.D.3d 381, 382, 780 N.Y.S.2d 773 [2004] ). Here, plaintiff did file a notice of claim which described in detail the time, place and manner of the conduct by Livanis that allegedly interfered with his tenure rights and continued employment with the DOE, as well as his ability to enter into employment with other schools. Although he did not use the words “tortious interference with contract,” a notice of claim does not have to set forth a precise legal theory of recovery ( DeLeonibus v. Scognamillo, 183 A.D.2d 697, 698, 583 N.Y.S.2d 285 [1992]; see also Simons v. City of New York, 252 A.D.2d 451, 453, 675 N.Y.S.2d 597 [1998] ). “[T]he notice of claim described in sufficient detail the time, place and manner of the occurrence and plaintiff's damages to advise the City of the basis for the claim so as to have an opportunity to investigate” ( id.; see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 547, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983] ).