Lane-Weber v. Plainedge Union Free School Dist.

• Decision Date: 20 March 1995
• Docket Number: A,LANE-WEBE
• Parties: , 99 Ed. Law Rep. 556 Lindappellant-Respondent, v. PLAINEDGE UNION FREE SCHOOL DISTRICT, Defendant-Respondent, George Kane, et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 185

624 N.Y.S.2d 185

213 A.D.2d 515, 99 Ed. Law Rep. 556

Linda LANE-WEBER, Appellant-Respondent, v. PLAINEDGE UNION FREE SCHOOL DISTRICT, Defendant-Respondent George Kane, et al., Respondents-Appellants.

Supreme Court, Appellate Division Second Department.

March 20, 1995.

Katherine Levitan, Mineola (Jeanne Schieck, of counsel), for appellant-respondent.

Hammill, O'Brien, Croutier & Dempsey, Smithtown (Kristen A. Pfaff, of counsel), for respondents-appellants.

Before BRACKEN, J.P., and BALLETTA, COPERTINO and HART, JJ.

MEMORANDUM BY THE COURT.

In an action pursuant to Executive Law § 296(1) the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated July 28, 1993, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as it is asserted against the defendant Plainedge Union Free School District, and (2) the defendants George Kane, Ray Blank, and Albert N. Lind cross-appeal from so much of the same order as denied those branches of their motion which were to dismiss the complaint insofar as it is asserted against them.

ORDERED that the order is modified, on the law, by deleting the provision thereof which granted the branch of the defendants' motion which was to dismiss the complaint insofar as it is asserted against the defendant Plainedge Union Free School District and substituting therefor a provision denying that branch of the defendants' motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff.

The plaintiff, Linda Lane-Weber, commenced the instant action alleging that she was the subject of a pattern of discriminatory practices. She alleged these acts occurred in retaliation for a complaint she had previously made with the New York State Division of Human Rights.

The Supreme Court granted the branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as it is asserted against the defendant Plainedge Union Free School District, holding that the plaintiff's causes of action were subject to the requirements of Education Law § 3813 and General Municipal Law § 50-e and that the plaintiff failed to timely comply with the notice of claim provisions therein. We now reverse.

Contrary to the defendants' contentions, an action to recover damages for discriminatory practices under Executive Law § 296 is governed by a three year Statute of Limitation as prescribed by CPLR 214(2) (see, Koerner v. State of New York, 62 N.Y.2d 442, 478 N.Y.S.2d 584, 467 N.E.2d 232; Mills v. County of Monroe, 89 A.D.2d 776, 453 N.Y.S.2d 486, affd 59 N.Y.2d 307, 464 N.Y.S.2d 709, 451 N.E.2d 456, cert denied 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725; Alaimo v. New York City Dept. of Sanitation, 203 A.D.2d 501, 611 N.Y.S.2d 245).

Moreover, while Education Law § 3813(2) dictates that no action "where the alleged tort" was committed by any teacher or member of the staff may be commenced "unless a notice of claim shall have been made and served", an action brought pursuant to Executive Law § 296 is not a tort claim (se...