LABOY v. CITY OF NEW YORK (2018)

Order, Supreme Court, Bronx County (Eddie J. McShan, J.), entered September 19, 2016, which, in this employment discrimination action, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The failure of plaintiff's decedent to file any notice of the discrimination claims which are asserted in this action was fatal to the claims against defendants (see Education Law § 3813[1] ).  Defendants did not waive this defense, as they raised it before the court of original jurisdiction (see Flanagan v Board of Educ., Commack Union Free School Dist., 47 N.Y.2d 613, 617, 419 N.Y.S.2d 917, 393 N.E.2d 991 [1979];  Robinson v Board of Educ. of City Sch. Dist. of City of N.Y., 104 A.D.3d 666, 667, 962 N.Y.S.2d 279 [2d Dept. 2013] ), and plaintiff's contention that the cursory form notice of administrative appeal from the unsatisfactory rating on the decedent's annual performance evaluation for the 1995–1996 school year satisfied the Education Law's notice of claim requirement, is unavailing.  The notice of administrative appeal informed defendants only that the decedent was appealing the unsatisfactory rating and gave no notice of her claims that she was discriminated against (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];  Gastman v Department of Educ. of City of N.Y., 60 A.D.3d 444, 874 N.Y.S.2d 459 [1st Dept. 2009], lv denied 12 N.Y.3d 711, 882 N.Y.S.2d 397, 909 N.E.2d 1235 [2009] ).

It is further noted that the action was untimely.  The decedent received her unsatisfactory rating in 1996 and the action was not commenced until 1999, well beyond the applicable one-year statute of limitations (see Stembridge v. New York Dept. of Educ., 88 A.D.3d 611, 931 N.Y.S.2d 72 [1st Dept. 2011], lv denied 19 N.Y.3d 802, 946 N.Y.S.2d 105, 969 N.E.2d 222 [2012];  Education Law § 3813[2–b] ).