Summary
In Sager, for example, the court held that § 52 applied to plaintiff's claim for damages for wrongful termination in violation of New York's Public Sector Whistleblower Law.
Summary of this case from Cnty. of Monroe v. Siemens Indus.Opinion
12-01-2016
David A. SAGER, Appellant, v. COUNTY OF SULLIVAN, Respondent.
Sussman & Watkins, Goshen (Michael H. Sussman of counsel), for appellant. Drake Loeb, PLLC, New Windsor (Stephen J. Gaba of counsel), for respondent.
Sussman & Watkins, Goshen (Michael H. Sussman of counsel), for appellant.
Drake Loeb, PLLC, New Windsor (Stephen J. Gaba of counsel), for respondent.
Before: PETERS, P.J., LYNCH, DEVINE, CLARK and AARONS, JJ.
PETERS, P.J. Appeal from an order of the Supreme Court (Schick, J.), entered June 23, 2015 in Sullivan County, which, among other things, granted defendant's motion for summary judgment dismissing the complaint.
In June 2013, plaintiff commenced this action against defendant, his former employer, asserting a claim for improper termination from his position as Deputy Commissioner of the Sullivan County Department of Social Services in violation of Civil Service Law § 75–b, the Public Sector Whistleblower Law. Plaintiff alleged that his employment had been terminated in retaliation for reporting illegal and negligent conduct by Department staff. Defendant thereafter moved to dismiss the complaint based upon, among other grounds, plaintiff's failure to file a notice of claim. In response, plaintiff cross-moved to deem his verified complaint a notice of claim. Supreme Court denied plaintiff's motion, granted defendant's motion and dismissed the complaint based upon plaintiff's failure to file a notice of claim. Plaintiff appeals.
Although defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(7), defendant had filed an answer and, thus, its motion should have been denominated as one for summary judgment under CPLR 3212 dismissing the complaint on grounds asserted in its answer (see Matter of Andrews v. State of New York, 138 A.D.3d 1297, 1298 n. 1, 29 N.Y.S.3d 679 [2016], lv. denied 27 N.Y.3d 912, 2016 WL 4532487 [2016] ).
Defendant was entitled to dismissal of the complaint based upon plaintiff's noncompliance with the notice of claim condition precedent of General Municipal Law § 50–e, as applicable to counties pursuant to County Law § 52 (see Mills v. County of Monroe, 59 N.Y.2d 307, 309, 464 N.Y.S.2d 709, 451 N.E.2d 456 [1983], cert. denied 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725 [1983] ; Grasso v. Schenectady County Pub. Lib., 30 A.D.3d 814, 816–817, 817 N.Y.S.2d 186 [2006] ; Matter of Rigle v. County of Onondaga, 267 A.D.2d 1088, 1088–1089, 701 N.Y.S.2d 222 [1999], lv. denied 94 N.Y.2d 764, 708 N.Y.S.2d 53, 729 N.E.2d 710 [2000] ; see also Thomas v. City of Oneonta, 90 A.D.3d 1135, 1135–1136, 934 N.Y.S.2d 249 [2011] ). As relevant here, County Law § 52(1) broadly provides that “[a]ny claim ... against a county for damage [or] injury ... and any other claim for damages arising at law or in equity, alleged to have been caused ... by or because of any misfeasance, omission of duty, negligence or wrongful act on the part of the county, its officers, agents, servants or employees, must be made and served in compliance with [General Municipal Law § 50–e ]” (see Mills v. County of Monroe, 59 N.Y.2d at 309, 464 N.Y.S.2d 709, 451 N.E.2d 456 n). Here, plaintiff's complaint sought damages for wrongful termination and, thus, pursuant to County Law § 52(1), General Municipal Law § 50–e(1)(a) required service of a notice of claim within 90 days after the claim for retaliatory termination arose. It is undisputed that plaintiff failed to serve a notice of claim, entitling defendant to dismissal of the complaint (see Grasso v. Schenectady County Pub. Lib., 30 A.D.3d at 816–817, 817 N.Y.S.2d 186 ; Matter of Rigle v. County of Onondaga, 267 A.D.2d at 1088–1089, 701 N.Y.S.2d 222 ).
Plaintiff's reliance on appellate decisions involving complaints asserting a Civil Service Law § 75–b or similar claims against cities, in which the courts have ruled that the filing of a notice of claim is not required (see Margerum v. City of Buffalo, 24 N.Y.3d 721, 730, 5 N.Y.S.3d 336, 28 N.E.3d 515 [2015] ; Castro v. City of New York, 141 A.D.3d 456, 458, 36 N.Y.S.3d 113 [2016] ), is misplaced. The cases cited by plaintiff involve claims against cities to which the more narrow notice of claim provisions of General Municipal Law §§ 50–e and 50–i apply, limiting the requirement for notices of claim to “tort” claims (General Municipal Law § 50–e[1][a] ) or claims for “personal injury, wrongful death or damage to real or personal property” (General Municipal Law § 50–i[1] ). By comparison, County Law § 52 applies to the claim against defendant, the County of Sullivan, and mandates notices of claim in a much broader scope of matters than the General Municipal Law (see Castro v. City of New York, 141 A.D.3d at 457–458, 36 N.Y.S.3d 113 ), requiring that a notice of claim be filed for “[a]ny claim ... against a county for damage” or “any other claim for damages arising at law or in equity” (emphases added). In light of plaintiff's failure to comply with the notice of claim provision of General Municipal Law § 50–e, as imposed by County Law § 52, defendant's motion was properly granted. Plaintiff's contention that the exception to the notice of claim requirement for actions brought to vindicate public—as opposed to private—rights was raised for the first time on appeal and, accordingly, it is not preserved for our review (see CPLR 5501[a][3] ; Liere v. State of New York, 123 A.D.3d 1323, 1323–1324, 999 N.Y.S.2d 581 [2014] ). In any event, this exception is inapplicable as plaintiff's alleged retaliatory conduct related only to himself and sought compensation for harm caused to him alone and did not seek to vindicate a public interest (see Mills v. County of Monroe, 59 N.Y.2d at 311–312, 464 N.Y.S.2d 709, 451 N.E.2d 456 ).
Although plaintiff asserts that County Law § 52 is limited by its heading—“Presentation of Claims for torts; Commencement of actions”—it is well-accepted that “the words of a statute may be broader than its heading” (McKinney's Cons Laws of NY, Book 1, Statutes § 123[b], Comment at 249), and that a heading “may not alter or limit the effect of unambiguous language in the body of the statute itself” (McKinney's Cons. Laws of NY, Book 1, Statutes § 123[a] ).
With regard to plaintiff's cross motion for leave to file a late notice of claim by deeming his complaint a notice of claim, it was properly denied. An application to file a late notice of claim must be made not more than one year and 90 days after the cause of action accrued, unless a toll is established (see General Municipal Law § 50–e[5] ; Pierson v. City of New York, 56 N.Y.2d 950, 954, 453 N.Y.S.2d 615, 439 N.E.2d 331 [1982] ; Mindy O. v. Binghamton City School Dist., 83 A.D.3d 1335, 1336, 921 N.Y.S.2d 696 [2011] ; see also Campbell v. City of New York, 4 N.Y.3d 200, 203, 209, 791 N.Y.S.2d 880, 825 N.E.2d 121 [2005] ). Plaintiff was terminated on May 15, 2013 and, therefore, his April 22, 2015 request, for which no toll was established, was not within the limitations period. Plaintiff's remaining claims are either unpreserved or lacking in merit.
ORDERED that the order is affirmed, without costs.
LYNCH, DEVINE, CLARK and AARONS, JJ., concur., concur.