McGILLICUDDY v. RUSH HENRIETTA CENTRAL SCHOOL DISTRICT (1997)

 This matter involves an action by the Plaintiff, Daniel McGillicuddy, in Small Claims, against the Defendant, Rush Henrietta Central School District, for a claim of $3,000.00 for unpaid wages.   At issue is whether or not Education Law § 3813, requiring a Notice of Claim to be filed within three months of the accrual of a claim against any school district, applies in a small claims matter and if so, what would qualify as proper notice under the statute.

Plaintiff was hired by the Defendant school district as a per diem substitute during the first semester of the 1996-1997 school year.   According to the terms of the collective bargaining agreement, a per diem substitute who has been assigned to the same replacement position for twenty consecutive school days is to be paid the difference between the prorated appropriate annual salary and the per diem rate paid retroactive to the first day of such consecutive assignment until the date on which the consecutive service ends.   Plaintiff served more than twenty consecutive days in the same substitute position.   After the twentieth day he was notified by the district of his salary level and his continuing employment.   Plaintiff complains that the salary level assigned to him was lower than his salary level at the time of his retirement.   The collective bargaining agreement does not specify at what level retired substitute teachers shall be paid and testimony from the Defendant's witness, the director of Human Resources for the District, indicated that it had been her course of practice to use her own formula when such a situation existed.

Plaintiff filed a grievance on an approved grievance form of the Rush Henrietta Central School District on December 2nd, 1996.   The school district dismissed that grievance as a nuisance and Plaintiff filed this action on March 3rd, 1997.   At the Hearing, the School District made an oral motion to dismiss the action citing Defendant's failure to file a timely notice of claim as required by the Education Law.

Education Law § 3813(1) states in pertinent part:

“no action or special proceeding, for any cause whatever ․ involving the rights or interests of any district or any such school shall be prosecuted or maintained against any school district ․ unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim ․ in the case of any action or special proceeding for monies due arising out of contract, accrual of such claim shall be deemed to have occurred as of the date payment for the amount claimed was denied.”

N.Y.Educ.Law § 3813(1) (McKinney 1992).

The Uniform Justice Court Act provides in pertinent part that “small claims” is defined as any cause of action for money only not in excess of Three Thousand Dollars exclusive of interest and costs.  UJCA, 1801 (1994).   Further, it should be noted that in the first sentence of Education Law § 3813 provides that “no action or special proceeding for any cause whatever shall be brought against a school district.”  N.Y.Educ.Law § 3813(1) (McKinney 1992).   Accordingly, it would appear that the language is meant to be all inclusive as long as the enforcement of a private right is involved.  Cayuga-Onondaga Brd. of Cooperative Educ. Services v. Sweeney, 89 N.Y.2d 395, 654 N.Y.S.2d 92, 676 N.E.2d 854 (1996).   However, before applying 3813 to a small claims proceeding, care must be taken to consider the legislative intent of small claims to “do substantial justice between the parties according to the rules of substantive law and shall not be bound by statutory provisions or rules of practice, procedure, pleading or evidence.”   UJCA 1804 (1991).   Thus, this Court must balance the right of the school district to have prompt notice of claims, so that investigation may be had before it is too late for an investigation to be efficient (Matter of Brd. of Educ. (Wager Corp.), 37 N.Y.2d 283, 372 N.Y.S.2d 45, 333 N.E.2d 353 (1975)), against a citizen's right to seek justice for an illegal wrong by speedy and inexpensive procedure in a forum of relaxed technical rules.

While it appears that no Court in this State has addressed the notice of claim issue under the Education Law as applied to the small claims actions, other Courts have spoken on the notice of claim requirements under § 50-e of the General Municipal Law when a Small Claims Court is the forum for the dispute.   Some Courts have held that a notice of claim is necessary in a small claims proceeding.   See Zipser v. Pound, 75 Misc.2d 489, 348 N.Y.S.2d 18 (2nd Dept.1972);  Brownstein v. County of Westchester, 51 A.D.2d 792, 380 N.Y.S.2d 62 (2nd Dept.1976).   However, other Courts have held that the requirements of § 50-e of the General Municipal Law regarding notice of claim are procedural in nature as distinguished from the basic substantive rights of the parties as to whether or not a cause of action exists.   Johnson v. Timmerman, 92 Misc.2d 626, 401 N.Y.S.2d 149 (Co.Ct., Jefferson Co., 1978);  Davis v. City of N.Y., 148 Misc.2d 422, 560 N.Y.S.2d 389 (Civil Ct., N.Y.Co., 1990).   In Resnick v. N.Y.C. Health and Hospitals Corp., 161 Misc.2d 156, 159, 612 N.Y.S.2d 315 (Civil Ct., N.Y.Co., 1994), the Court noted:

“(i)t is clear that the procedural requirements such as the Notice of Claim provisions of General Municipal Law Section 50-e need not be strictly applied in Small Claims Court.”

Resnick, id. at 159, 612 N.Y.S.2d 315.

The Courts in Resnick, Johnson, and Davis appear to conclude that since General Municipal Law § 50-e is a procedural statute and since § 1804 of the Uniform Justice Court Act provides that the Court “shall not be bound by statutory provisions or rules of practice, procedure, pleading, or evidence,” ordinary procedural rules would be inapplicable in a small claims action.  UJCA, § 1804 (emphasis supplied).

It has long been held that the notice of claim requirement of § 3813 of the Education Law is a condition precedent to bringing an action against a school district or a board of education and failure to present a claim within the statutory time limitation or to notify the correct party is a fatal defect.   Parochial Bus Systems v. Brd. of Educ., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241 (1983).  Matter of McClellan v. Alexander Central Sch. Brd. of Educ., 201 A.D.2d 898, 607 N.Y.S.2d 812 (4th Dept.1994).   Failure to file a timely notice of claim has been held a jurisdictional defect and precludes any claims associated therewith.   See Peek v. Williamsville Brd. of Educ., 221 A.D.2d 919, 635 N.Y.S.2d 374 (4th Dept.1995).

In comparing § 3813 of the Education Law to General Municipal Law Section 50-e, it would seem that the former encompasses a broader and a more inclusive type of action or proceeding.  (See, Education Law § 3813 [“no action or special proceeding, for any cause whatever ․”] ).   The Court of Appeals has been very outspoken in calling § 3813 of the Education Law “a condition precedent to bringing an action against a school district or board of education”.  Parochial, supra, at page 547, 470 N.Y.S.2d 564, 458 N.E.2d 1241.  Wager, supra, at page 289, 372 N.Y.S.2d 45, 333 N.E.2d 353.

With such strong language in the statute and clear direction provided by the Court of Appeals in interpretation of the same, it is this Court's conclusion that compliance with § 3813 of the Education Law in a small claims proceeding is mandatory.   To hold otherwise would be to stretch beyond the breaking point “informal and simplified” procedural rules generally applied in small claims practice.  See Ragosto v. Triborough Bridge and Tunnel Authority, 173 Misc.2d 560, 561, 663 N.Y.S.2d 462 [App.Term, 2d Dept 1997] (the Second Department holds that the notice of claim provisions in Section 50-e of the General Municipal Law would apply in a Small Claims Action).  Id.  Further, the Court of Appeals' decision to apply § 3813 to arbitrations would give further weight in deciding to apply those provisions to a small claims action.   See Wager Corp., supra.

 In holding that the notice of claim provisions of Education Law § 3813 apply to small claims matters, this Court must now decide what type of notice is sufficient to comply with the statute.   Notably, Education Law § 3813 is not as detailed as General Municipal Law Section 50-e in describing the requirements of the claim.   Plaintiff has argued that in this matter the school board had sufficient notice of his claim by virtue of his filing the December 2, 1996 grievance.   In order for a document to be a valid substitute for a Notice of Claim, “certain elements must be present including the nature of the claim, the time when, the place where, and the manner in which the claim arose (McClellan, supra, p. 899, 607 N.Y.S.2d 812) ․ and where an action in contract is involved, the monetary demand and some explanation of its computation”.  P.J. Panzeca, Inc. v. Brd. of Educ., 29 N.Y.2d 508, 509, 323 N.Y.S.2d 978, 272 N.E.2d 488 (1971).  “The critical element in a verified claim in a contract action is the monetary demand and some suggestion at least on how the sum is arrived at or the damages incurred”.   See Hygrade Insulators v. Brd. of Educ., Middle Country Central Sch. Dist., 207 A.D.2d 430, 615 N.Y.S.2d 744 (2nd Dept.1994) (Invoice for services provided held timely notice of claim);  Brd. of Educ. v. Ambach, 81 A.D.2d 691, 438 N.Y.S.2d 637 (3rd Dept.1981) (Article 78 Petition deemed valid as notice of claim);  Feinberg v. Brd. of Educ., 78 A.D.2d 889, 433 N.Y.S.2d 39 (2nd Dept.1980) (Verified cross petition constituted notice of claim).   Cf., F & G Heating Company v. Brd. of Educ., 103 A.D.2d 791, 477 N.Y.S.2d 665 (2nd Dept.1984) (Letters and bills could not be substituted for notice of claim absent monetary demand and some explanation of its computation).

It is this Court's holding that the Plaintiff has conformed with the notice of claim requirement and Education Law § 3818 by virtue of his filing of the grievance on December 2nd, 1996.   The Court finds that the grievance contained an accurate description of the claim and explanation of the Plaintiff's demands so as to qualify within the meaning of the statute and the relevant case law.

 Finally, turning to the merits of this action and the testimony of both of the parties and the documents reviewed, it is apparent that the Plaintiff took the substitute teaching position without a clear and accurate understanding as to the exact salary rate that he would receive at the end of the twenty day waiting period.   A letter to the Plaintiff from the District's Human Resources Office of October 4th, 1996 does not convince this Court that it was the intention of the parties to restore the Plaintiff to his pre-retirement salary structure.   In reviewing the collective bargaining agreement at page 43 section 4, there is no contractual obligation by the school district to place a retired teacher acting as a substitute at the actual scale he was receiving at the time of his retirement.   Even if it had, there is some question as to whether or not the collective bargaining agreement would apply to a retired employee.   The Defendant's witness also testified that it was her practice as Director of Human Resources, when a substitute teacher was a retired teacher to provide that teacher with a maximum credit of ten (10) years of experience in determining the retired teacher's substitute teaching salary.   She also testified that the waiting period of twenty days before the Plaintiff's salary was set was due to the predictability of how long a substitute teacher was needed by the school district.   Therefore, as no proof has been submitted that the school district was bound either contractually or verbally to pay the Defendant at his pre-retirement salary scale, this Court finds accordingly for the Defendant.

JOHN G. PERICAK, Justice.