MOMPOINT v. CITY OF NEW YORK

Reset A A Font size: Print

Supreme Court, Appellate Division, Second Department, New York.

Philippe MOMPOINT, Appellant, v. CITY OF NEW YORK, et al., Respondents.

Decided: November 25, 2002

A. GAIL PRUDENTI, P.J., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN and REINALDO E. RIVERA, JJ. Itamar J. Yeger, Queens, NY, for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel), for respondents.

In an action, inter alia, to recover damages for employment discrimination in violation of Executive Law § 296 and 42 U.S.C. § 1983 et seq., the plaintiff appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated July 20, 2001, which granted the defendants' motion to dismiss the complaint for failure to timely serve a notice of claim and as time-barred, and denied his cross motion for leave to serve a late notice of claim.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was to dismiss the third cause of action and substituting therefor a provision denying that branch of the motion;  as so modified, the order is affirmed, with costs to the plaintiff.

The plaintiff commenced this action alleging that he was fired from his position as a New York City school teacher as a result of intentional discrimination due, inter alia, to his race, and to a speech impediment.   His complaint asserted three causes of action alleging violations of State and Federal law.

 The Supreme Court erred in dismissing the third cause of action pursuant to General Municipal Law § 50-e and § 50-i.  “[N]otice of claim requirements are inapplicable to claims pursuant to 42 USC § 1983” (Sangermano v. Board of Coop. Educ. Serv. of Nassau Co., 290 A.D.2d 498, 499, 736 N.Y.S.2d 258;  see Welch v. State of New York, 286 A.D.2d 496, 729 N.Y.S.2d 527;  Lopez v. Shaughnessy, 260 A.D.2d 551, 688 N.Y.S.2d 614).   Thus, “[t]he plaintiff's failure to file a notice of claim * * * does not require dismissal of [his] claims under 42 USC § 1983” (Zwecker v. Clinch, 279 A.D.2d 572, 574, 720 N.Y.S.2d 150).

 Furthermore, the plaintiff, who was fired on his first day of work, was still a probationary teacher.   It is settled that “a decision to terminate probationary employment is final and binding on the date the termination becomes effective” (Matter of Johnson v. Board of Educ. of City of N.Y., 291 A.D.2d 450, 737 N.Y.S.2d 392;  see Matter of Budihas v. Board of Educ. of City of N.Y., 285 A.D.2d 549, 728 N.Y.S.2d 493;  Matter of Mateo v. Board of Educ. of City of N.Y., 285 A.D.2d 552, 728 N.Y.S.2d 71).   The statute of limitations begins to run on the date the termination is effective (Matter of Johnson v. Board of Educ. of City of N.Y., supra).   A Federal civil rights claim is a personal injury claim that is governed by the three-year statute of limitations contained in CPLR 214(5) (423 S. Salina St. v. City of Syracuse, 68 N.Y.2d 474, 510 N.Y.S.2d 507, 503 N.E.2d 63, cert. denied 481 U.S. 1008, 107 S.Ct. 1880, 95 L.Ed.2d 488;  D & S Realty Dev. v. Town of Huntington, 295 A.D.2d 306, 743 N.Y.S.2d 147;  Matter of Beers v. Incorporated Vil. of Floral Park, 262 A.D.2d 315, 691 N.Y.S.2d 546).   As the defendants concede, this action was commenced on October 15, 1999.   The plaintiff's third cause of action accrued on October 17, 1997, when his employment was terminated.   Thus, his third cause of action was interposed within the applicable three-year statute of limitations, and should not have been dismissed as time-barred.

The plaintiff's remaining contentions are without merit.

Copied to clipboard