Opinion
2001-03021
Submitted December 17, 2001.
January 22, 2002.
In an action to recover damages for employment discrimination in violation of Executive Law § 296, and violations of due process pursuant to 42 U.S.C. § 1983 et seq., the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated February 26, 2001, which granted the defendant's motion to dismiss the complaint for failure to timely file a timely notice of claim.
Wolin Wolin, Jericho, N.Y. (Alan E. Wolin of counsel), for appellant.
L'Abbate, Balkan, Colavita Contini, LLP, Garden City, N.Y. (Diane Krebs of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, STEPHEN G. CRANE, BARRY A. COZIER, JJ.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was to dismiss the second cause of action and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
Contrary to the plaintiff's contention, the Supreme Court correctly granted that branch of the defendant's motion which was to dismiss his first cause of action due to his failure to file a timely notice of claim as required by Education Law § 3813(1). The plaintiff's first cause of action alleged that his employment was constructively terminated as a result of racial discrimination in violation of Executive Law § 296. Where a plaintiff seeks private relief, damages, or reinstatement for employment discrimination in violation of the Executive Law, the filing of a timely notice of claim is a condition precedent to suit (see, Mills v. County of Monroe, 59 N.Y.2d 307, cert denied 464 U.S. 1018; Matter of Town of Brookhaven v. New York State Div. of Human Rights, 282 A.D.2d 685; Hibbert v. Suffolk Co. Dept. of Probation, 267 A.D.2d 205; Bidnick v. Johnson, 253 A.D.2d 779; Doyle v. Board of Educ. of Deer Park UFSD, 230 A.D.2d 820; Scopelliti v. Town of New Castle, 210 A.D.2d 308; Hoger v. Thomann, 189 A.D.2d 1048). The case of Lane_Weber v. Plainedge Union Free School Dist. ( 213 A.D.2d 515) is not to the contrary, as it involved the notice of claim requirement under Education Law § 3813(2).
The Supreme Court erred, however, in granting that branch of the defendant's motion which was to dismiss the second cause of action. In his second cause of action, the plaintiff alleged that he was forced to resign from his employment without having been afforded the "procedural safeguards and a right to be heard prior to termination" as guaranteed by 42 U.S.C. § 1983 et seq. The Supreme Court's sole rationale for dismissing this cause of action was the plaintiff's failure to timely file a notice of claim. However, notice of claim requirements are inapplicable to claims pursuant to 42 U.S.C. § 1983 (see, Welch v. State of New York, 286 A.D.2d 496, 498; Zwecker v. Clinch, 279 A.D.2d 572, 574; Lopez v. Shaughnessy, 260 A.D.2d 551, 552_553; Gorman v. Sachem Cent. School Dist., 232 A.D.2d 452).
In the alternative, the defendant contends that the plaintiff's complaint failed to state a cause of action pursuant to 42 U.S.C. § 1983. However, assuming the truth of the plaintiff's allegations, and giving them the benefit of every favorable inference as we are required to do on a motion pursuant to CPLR 3211(a)(7) (see, Edmond v. International Bus. Mach. Corp., 91 N.Y.2d 949, 951; Negrin v. Northwest Mtg., 263 A.D.2d 39, 51), we conclude that the second cause of action is sufficient to withstand dismissal (see, Vitale v. Rosina Food Prods., 283 A.D.2d 141; 1414 Realty Corp. v. GG Realty Co., 272 A.D.2d 309).
SANTUCCI, J.P., SMITH, CRANE and COZIER, JJ., concur.