Arnold v. Town of Camillus

• Docket Number: 831 CA 22-01774
• Decision Date: 22 December 2023
• Citation: 2023 NY Slip Op 06627
• Parties: PATRICIA ARNOLD, PLAINTIFF-APPELLANT, v. TOWN OF CAMILLUS, POLICE CHIEF THOMAS WINN, CAPTAIN JAMES NIGHTINGALE, TOWN SUPERVISOR MARY ANN COOGAN, DAVID CALLAHAN, JOY FLOOD, DICK GRIFFO, STEVEN JAMES, MIKE LAFLAIR, MARY LUBER, AND JOHN DOE(S) AND JANE DOE(S) IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES AS OFFICIALS, OFFICERS, AGENTS, EMPLOYEES, AND/OR REPRESENTATIVES OF TOWN OF CAMILLUS AND/OR THE CAMILLUS POLICE DEPARTMENT, DEFENDANTS-RESPONDENTS.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 06627

PATRICIA ARNOLD, PLAINTIFF-APPELLANT,
v.
TOWN OF CAMILLUS, POLICE CHIEF THOMAS WINN, CAPTAIN JAMES NIGHTINGALE, TOWN SUPERVISOR MARY ANN COOGAN, DAVID CALLAHAN, JOY FLOOD, DICK GRIFFO, STEVEN JAMES, MIKE LAFLAIR, MARY LUBER, AND JOHN DOE(S) AND JANE DOE(S) IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES AS OFFICIALS, OFFICERS, AGENTS, EMPLOYEES, AND/OR REPRESENTATIVES OF TOWN OF CAMILLUS AND/OR THE CAMILLUS POLICE DEPARTMENT, DEFENDANTS-RESPONDENTS.

No. 831 CA 22-01774

Supreme Court of New York, Fourth Department

December 22, 2023

BOSMAN LAW, L.L.C., BLOSSVALE (ROBERT J. STRUM OF COUNSEL), FOR PLAINTIFF-APPELLANT.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (KSENIYA PREMO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

PRESENT: SMITH, J.P., BANNISTER, GREENWOOD, AND NOWAK, JJ.

Appeal from an order of the Supreme Court, Onondaga County (Joseph E. Lamendola, J.), entered January 7, 2022. The order denied the application of plaintiff seeking, among other things, leave to serve a late notice of claim.

It is hereby ORDERED that the order so appealed from is unanimously modified in the exercise of discretion by granting the application insofar as it sought leave to serve a late notice of claim with respect to the third and fourth causes of action, upon condition that the proposed notice of claim is served within 30 days of the date of entry of the order of this Court, and as modified the order is affirmed without costs.

Memorandum: Plaintiff, a police officer previously employed by defendant Town of Camillus (Town), commenced this action in October 2020 seeking to recover damages based on allegations that, inter alia, defendants violated the Human Rights Law (Executive Law § 290 et seq.) by discriminating against her on the basis of gender, subjecting her to a hostile work environment, constructively discharging her from employment, and retaliating against her after she complained about the alleged unlawful discriminatory practices. Plaintiff alleged, in pertinent part, that defendant Captain James Nightingale, who was her superior, subjected her to sexual harassment, including inappropriate and uninvited touching, and disparate treatment based on her gender, and that defendant Police Chief Thomas Winn responded with hostility and failed to adequately address Nightingale's behavior after plaintiff repeatedly brought the discriminatory conduct to Winn's attention, all of which precipitated her resignation from the Town's police department in August 2019. Plaintiff moved, simultaneously with the filing of the complaint, for a "declaration" that she was not required to serve a notice of claim for her Human Rights Law claims asserted in the third and fourth causes of action, as well as for leave to serve a late notice of claim regarding her state law tort claims and, if required, her Human Rights Law claims. Supreme Court denied the motion, and plaintiff now appeals.

Plaintiff contends that she was not required to file a notice of claim for her Human Rights Law claims because the logic of the Court of Appeals' decision in Margerum v City of Buffalo (24 N.Y.3d 721 [2015]), which adhered to the interpretations of Departments of the Appellate Division that a claim under the Human Rights Law does not require a notice of claim pursuant to General Municipal Law §§ 50-e and 50-i, applies equally to relieve her of the notice of claim requirement under Town Law § 67. Even assuming, arguendo, that plaintiff is not collaterally estopped from litigating that issue by virtue of prior orders that were entered while the action was removed to federal court (see Arnold v Town of Camillus, 2021 WL 3021946, *1-3, 2021 U.S. Dist LEXIS 132601, *1-6 [ND NY, July 16, 2021, No. 5:20-CV-1364 (MAD/ML)]; Arnold v Town of Camillus, 2021 WL 326886, *1-6, 2021 U.S. Dist LEXIS 18327, *1-15 [ND NY, Feb. 1, 2021, No. 5:20-CV-1364 (MAD/ML)]), we conclude for the reasons that follow that the court properly determined that Town Law § 67 required that plaintiff serve a notice of claim for her Human Rights Law claims.

"General Municipal Law § 50-e (1) (a) requires service of a notice of claim within 90 days after the claim arises '[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation'" (Margerum, 24 N.Y.3d at 730). "General Municipal Law § 50-i (1) precludes commencement of an action against a city[, town, or certain other entities] 'for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city[, town, or certain other entities],' unless a notice of claim has been served in compliance with section 50-e" (id.). The Court of Appeals has concluded that, under those statutes, a notice of claim is not required for alleged violations of the Human Rights Law because "[h]uman rights claims are not tort actions under section 50-e and are not personal injury, wrongful death, or damage to personal property claims under section 50-i" (id.). In doing so, the Court of Appeals adhered to the determinations of Departments of the Appellate Division that "the General Municipal Law does not encompass a cause of action based on the Human Rights Law" and that" '[s]ervice of a notice of claim is therefore not a condition precedent to commencement of an action based on the Human Rights Law in a jurisdiction where General Municipal Law §§ 50-e and 50-i provide the only notice of claim criteria'" (id., quoting Picciano v Nassau County Civ. Serv. Commn., 290 A.D.2d 164, 170 [2d Dept 2001]).

As the parties recognize, however, the case before us does not involve "a jurisdiction where General Municipal Law §§ 50-e and 50-i provide the only notice of claim criteria" (id. at 730 [emphasis added]). Instead, Town Law § 67 provides in relevant part that "[a]ny claim... which may be made against [a] town... for damages for wrong or injury to person or property or for the death of a person, shall be made and served in compliance with [General Municipal Law

§ 50-e]" (Town Law § 67 [1]) and that "[e]very action upon such claim shall be commenced pursuant to the provisions of [General Municipal Law § 50-i]" (Town Law § 67 [2]). Plaintiff contends that the scope of Town Law § 67 is the same as that of General Municipal Law §§ 50-e and 50-i such that the reasoning in Margerum applies equally to each statute, thereby rendering a notice of claim unnecessary for her Human Rights Law claims. We conclude that the statutory text and precedent demonstrate that plaintiff's contention lacks merit.

Town Law § 67 broadly applies to any claim against a town defendant for damages in five categories: (1) for wrong to person; (2) for injury to person; (3) for wrong to property; (4) for injury to property; and (5) for the death of a person (see Town Law § 67 [1]). By contrast, General Municipal Law § 50-i requires a notice of claim only for those actions involving claims "for personal injury, wrongful death or damage to real or personal property" (General Municipal Law

§ 50-i [1]). Even if, as plaintiff posits, there is no meaningful...