Sheil v. Melucci

9 Citing cases

  1. Mcgovern v. Mount Pleasant Cent. Sch. Dist.

    114 A.D.3d 795 (N.Y. App. Div. 2014)   Cited 13 times
    Stating rule that “notice of claim requirement does not apply when a litigant seeks only equitable relief,” but as the petitioner in that proceeding sought reinstatement and back pay after being terminated, a notice of claim was required under Education Law § 3813

    Contrary to the Supreme Court's conclusion, the petitioner was required, pursuant to Education Law § 3813(1), to serve a notice of claim within three months after her claim arose. Although 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), 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, 646 N.Y.S.2d 842), here the petitioner seeks damages in the form of back pay as well as equitable relief, and has not commenced this proceeding to vindicate a public interest. Moreover, while a litigant who seeks “judicial enforcement of a legal right derived through enactment of positive law” is exempt from the notice of claim requirement ( Sharpe v. Sturm, 28 A.D.3d 777, 779, 814 N.Y.S.2d 229), that exemption is inapplicable here ( see Matter of Silvernail v. Enlarged City School Dist. of Middletown, 40 A.D.3d 1004, 1005, 836 N.Y.S.2d 286). Accordingly, service of a notice of claim pursuant to Education Law § 3813(1) was a condition precedent to the maintenance of this proceeding ( see Matter of Smith v. Brenner, 106 A.D.3d 1018, 965 N.Y.S.2d 368;Matter of Sheil v. Melucci, 94 A.D.3d at 768, 941 N.Y.S.2d 265;Matrisciano v. Board of Educ. of C

  2. K.S. v. The City of New York

    21-CV-04649 (PAC) (S.D.N.Y. Oct. 10, 2023)   Cited 1 times

    Third, Plaintiffs point to the exemption from the requirement that applies “when a litigant seeks only equitable relief.” Sheil v. Melucci, 941 N.Y.S.2d 265, 267-68 (N.Y. A.D.2d Dep't. 2012) (collecting cases).

  3. Nunez v. City of N.Y.

    No. 14-cv-4182 (RJS) (S.D.N.Y. Mar. 31, 2016)   Cited 20 times
    Finding a lack of personal involvement for a defendant where the plaintiffs "fail[ed] to plead any facts suggesting that she was personally involved in the decision to arrest Plaintiff or to detain him pre-arraignment"

    (See Doc. No. 2; FAC ¶ 17.) Accordingly, the Court dismisses Plaintiff's state law claims against the City, including the respondeat superior claim, for failure to state a claim on which relief can be granted. See, e.g., Sheil v. Melucci, 94 A.D.3d 766, 768 (2012) (dismissing action where plaintiff served notice on defendant "on the same day as she commenced [a] CPLR article 78 proceeding" and therefore "did not - and could not - allege in the petition that 30 days had elapsed since the service of the notice of claim"); Smith v. Scott, 294 A.D.2d 11, 22 (2002) (dismissing action against city for failure to plead compliance with New York's notice requirement); see also Horvath v. Daniel, 423 F. Supp. 2d 421, 424-25 (S.D.N.Y. 2006) (federal courts "lack authority to permit [a] plaintiff to file a late Notice of Claim"). IV. CONCLUSION

  4. Fotopoulos v. Bd. of Fire Comm'rs of the Hicksville Fire Dist.

    161 A.D.3d 733 (N.Y. App. Div. 2018)   Cited 11 times

    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 (seeDoyle 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 ; seeMatter 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 ).

  5. Idolor v. Bd. of Coop. Educ. Servs. of Nassau Cnty.

    134 A.D.3d 938 (N.Y. App. Div. 2015)   Cited 3 times

    ORDERED that the order and judgment is affirmed, with costs.Contrary to the petitioner's contention, the filing of a notice of claim within three months after his claim arose was a condition precedent to the maintenance of this proceeding, in which he seeks both equitable relief and recovery of damages (see Education Law § 38131; Matter of McGovern v. Mount Pleasant Cent. Sch. Dist., 114 A.D.3d 795, 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, 1018, 965 N.Y.S.2d 368; Matter of Sheil v. Melucci, 94 A.D.3d 766, 767–768, 941 N.Y.S.2d 265). Accordingly, since the petitioner did not file a timely notice of claim, the Supreme Court properly granted that branch of the respondent's motion which was to dismiss the proceeding (see Education Law § 38131 ).RIVERA, J.P., CHAMBERS, SGROI and LaSALLE, JJ., concur.

  6. Rose v. N.Y.C. Health & Hosps. Corp.

    122 A.D.3d 76 (N.Y. App. Div. 2014)   Cited 9 times
    Holding that while General Municipal Law § 50-i does not apply to all tort actions, court was constrained by prior decisions to find notice of claim requirements applied to Whistleblower claim

    nc. v. Board of Educ. of City of Yonkers, 87 A.D.3d 557, 927 N.Y.S.2d 921 [2d Dept.2011] [claimant seeking equitable relief of specific performance of a collective bargaining agreement, and not money damages, was not required to serve a notice of claim under Education Law § 3813[1] ). We note that the Second Department has taken a more narrow approach in recent years ( compare Ruocco v. Doyle, 38 A.D.2d 132, 133, 135, 327 N.Y.S.2d 933 (2d Dept.1972) [notice of claim not needed when seeking declaratory judgment that the purported resignation of the plaintiff, a school principal with tenure, was null and void, as well as “merely incidental” money damages], with Matter of McGovern, 114 A.D.3d at 795–796, 980 N.Y.S.2d 522 [stating rule that “notice of claim requirement does not apply when a litigant seeks only equitable relief,” but as the petitioner in that proceeding sought reinstatement and back pay after being terminated, a notice of claim was required under Education Law § 3813], and Matter of Sheil v. Melucci, 94 A.D.3d 766, 767–768, 941 N.Y.S.2d 265 [2d Dept.2012] [stating rule that the notice requirements under Education Law § 3813 “do not apply when a litigant seeks only equitable relief,” but holding in this article 78 proceeding that as the petitioner sought both equitable relief and recovery of damages following her dismissal, she was required to file a notice of claim]; see also Matter of Stevens v. Board of Educ. of McGraw Cent. Sch. Dist., 261 A.D.2d 698, 699, 689 N.Y.S.2d 730 [3d Dept.1999]

  7. Smith v. Brenner

    106 A.D.3d 1018 (N.Y. App. Div. 2013)   Cited 6 times

    ORDERED that the order and judgment is affirmed, with costs. Contrary to the petitioner's contention, the filing of a notice of claim within three months after her underlying claim arose was a condition precedent to the maintenance of this proceeding, in which she seeks both equitable relief and recovery of damages ( seeEducation Law § 3813[1]; Matter of Sheil v. Melucci, 94 A.D.3d 766, 767, 941 N.Y.S.2d 265;Doyle v. Board of Educ. of Deer Park Union Free School Dist., 230 A.D.2d 820, 646 N.Y.S.2d 842;Matter of McClellan v. Alexander Cent. School Bd. of Educ., 201 A.D.2d 898, 899, 607 N.Y.S.2d 812). Moreover, the petitioner's notice of claim dated August 9, 2011, seeking damages for unlawful discrimination, did not satisfy the statutory requirement of placing the school district on notice of her challenge to the determination of the respondent Board of Education of the Roslyn Union Free School District terminating her employment, which occurred subsequently on September 15, 2011 ( see Varsity Tr., Inc. v. Board of Educ. of City of N.Y., 5 N.Y.3d 532, 806 N.Y.S.2d 457, 840 N.E.2d 569;Agostinello v. Great Neck Union Free Sch. Dist., 102 A.D.3d 638, 639–640, 958 N.Y.S.2d 166). Accordingly, the Supreme Court properly granted that branch of the respondents' motion which was to dismiss the petition based upon the petitioner's failure to comply with the notice*369of claim requirements of Educati

  8. Olden-Camiolo v. N.Y.C. Dep't of Educ.

    39 Misc. 3d 982 (N.Y. Sup. Ct. 2013)

    A claim is equitable where a probationary employee asks for reinstatement and to recover lost benefits, as the recovery of benefits is consequent to putting petitioner back in the same shoes. See Friedland v. New York City Dept. of Educ., 2005 WL 5966489 (Sup. Ct., N.Y. County 2005), affd.39 A.D.3d 395, 832 N.Y.S.2d 800 (1st Dept. 2007) (no mention of notice of claim in Article 78 challenging termination of petitioner's services as a probationary Principal where petitioner sought reinstatement and back pay including benefits); Matter of Sheil v. Melucci, 94 A.D.3d 766, 941 N.Y.S.2d 265 (2d Dept. 2012) (no notice of claim necessary in Article 78 where petitioner sought review of the determination terminating her employment and to recover back pay and benefits).

  9. 3170 Atl. Ave Corp v. Jereis

    38 Misc. 3d 1222 (N.Y. Civ. Ct. 2013)   Cited 3 times

    By analogy, in considering whether a CPLR Article 78 proceeding was brought prematurely because the petitioner had not waited for 30 days to elapse after serving the requisite notice of claim, the court looked to the date of service of the article 78 proceeding. Mtr. Of Sheil v. Melucci, 94 A.D.3d 766, 941 N.Y.S.2d 265 (2d Dept 2012). See, also, Mulligan v. County of Westchester, 272 A.D1023 (2d Dept.1947) (complaint served prior to expiration of three months after service of notice of claim must be dismissed).