Sager v. County of Sullivan ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 1, 2016 523003
________________________________
DAVID A. SAGER,
Appellant,
v MEMORANDUM AND ORDER
COUNTY OF SULLIVAN,
Respondent.
________________________________
Calendar Date: October 11, 2016
Before: Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.
__________
Sussman & Watkins, Goshen (Michael H. Sussman of counsel),
for appellant.
Drake Loeb, PLLC, New Windsor (Stephen J. Gaba of counsel),
for respondent.
__________
Peters, P.J.
Appeal from an order of the Supreme Court (Schick, J.),
entered June 23, 2015 in Sullivan County, which, among other
things, granted defendant's motion for summary judgment
dismissing the complaint.
In June 2013, plaintiff commenced this action against
defendant, his former employer, asserting a claim for improper
termination from his position as Deputy Commissioner of the
Sullivan County Department of Social Services in violation of
Civil Service Law § 75-b, the Public Sector Whistleblower Law.
Plaintiff alleged that his employment had been terminated in
retaliation for reporting illegal and negligent conduct by
Department staff. Defendant thereafter moved to dismiss the
complaint based upon, among other grounds, plaintiff's failure to
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file a notice of claim.1 In response, plaintiff cross-moved to
deem his verified complaint a notice of claim. Supreme Court
denied plaintiff's motion, granted defendant's motion and
dismissed the complaint based upon plaintiff's failure to file a
notice of claim. Plaintiff appeals.
Defendant was entitled to dismissal of the complaint based
upon plaintiff's noncompliance with the notice of claim condition
precedent of General Municipal Law § 50-e, as applicable to
counties pursuant to County Law § 52 (see Mills v County of
Monroe, 59 NY2d 307, 309 [1983], cert denied 464 US 1018 [1983];
Grasso v Schenectady County Pub. Lib., 30 AD3d 814, 816-817
[2006]; Matter of Rigle v County of Onondaga, 267 AD2d 1088,
1088-1089 [1999], lv denied 94 NY2d 764 [2000]; see also Thomas v
City of Oneonta, 90 AD3d 1135, 1135-1136 [2011]). As relevant
here, County Law § 52 (1) broadly provides that "[a]ny claim . .
. against a county for damage [or] injury . . . and any other
claim for damages arising at law or in equity, alleged to have
been caused . . . by or because of any misfeasance, omission of
duty, negligence or wrongful act on the part of the county, its
officers, agents, servants or employees, must be made and served
in compliance with [General Municipal Law § 50-e]" (see Mills v
County of Monroe, 59 NY2d at 309 n). Here, plaintiff's complaint
sought damages for wrongful termination and, thus, pursuant to
County Law § 52 (1), General Municipal Law § 50-e (1) (a)
required service of a notice of claim within 90 days after the
claim for retaliatory termination arose. It is undisputed that
plaintiff failed to serve a notice of claim, entitling defendant
to dismissal of the complaint (see Grasso v Schenectady County
Pub. Lib., 30 AD3d at 816-817; Matter of Rigle v County of
Onondaga, 267 AD2d at 1088-1089).
1
Although defendant moved to dismiss the complaint
pursuant to CPLR 3211 (a) (7), defendant had filed an answer and,
thus, its motion should have been denominated as one for summary
judgment under CPLR 3212 dismissing the complaint on grounds
asserted in its answer (see Matter of Andrews v State of New
York, 138 AD3d 1297, 1298 n 1 [2016], lv denied 27 NY3d 912
[2016]).
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Plaintiff's reliance on appellate decisions involving
complaints asserting a Civil Service Law § 75-b or similar claims
against cities, in which the courts have ruled that the filing of
a notice of claim is not required (see Margerum v City of
Buffalo, 24 NY3d 721, 730 [2015]; Castro v City of New York, 141
AD3d 456, 458 [2016]), is misplaced. The cases cited by
plaintiff involve claims against cities to which the more narrow
notice of claim provisions of General Municipal Law §§ 50-e and
50-i apply, limiting the requirement for notices of claim to
"tort" claims (General Municipal Law § 50-e [1] [a]) or claims
for "personal injury, wrongful death or damage to real or
personal property" (General Municipal Law § 50-i [1]). By
comparison, County Law § 52 applies to the claim against
defendant, the County of Sullivan, and mandates notices of claim
in a much broader scope of matters than the General Municipal Law
(see Castro v City of New York, 141 AD3d at 457-458), requiring
that a notice of claim be filed for "[a]ny claim . . . against a
county for damage" or "any other claim for damages arising at law
or in equity" (emphases added).2
In light of plaintiff's failure to comply with the notice
of claim provision of General Municipal Law § 50-e, as imposed by
County Law § 52, defendant's motion was properly granted.
Plaintiff's contention that the exception to the notice of claim
requirement for actions brought to vindicate public – as opposed
to private – rights was raised for the first time on appeal and,
accordingly, it is not preserved for our review (see CPLR 5501
[a] [3]; Liere v State of New York, 123 AD3d 1323, 1323-1324
[2014]). In any event, this exception is inapplicable as
plaintiff's alleged retaliatory conduct related only to himself
and sought compensation for harm caused to him alone and did not
2
Although plaintiff asserts that County Law § 52 is
limited by its heading – "Presentation of Claims for torts;
Commencement of actions" – it is well-accepted that "the words of
a statute may be broader than its heading" (McKinney's Cons Laws
of NY, Book 1, Statutes § 123 [b], Comment at 249), and that a
heading "may not alter or limit the effect of unambiguous
language in the body of the statute itself" (McKinney's Cons Laws
of NY, Book 1, Statutes § 123 [a]).
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seek to vindicate a public interest (see Mills v County of
Monroe, 59 NY2d at 311-312).
With regard to plaintiff's cross motion for leave to file a
late notice of claim by deeming his complaint a notice of claim,
it was properly denied. An application to file a late notice of
claim must be made not more than one year and 90 days after the
cause of action accrued, unless a toll is established (see
General Municipal Law § 50-e [5]; Pierson v City of New York, 56
NY2d 950, 954 [1982]; Mindy O. v Binghamton City School Dist., 83
AD3d 1335, 1336 [2011]; see also Campbell v City of New York, 4
NY3d 200, 203, 209 [2005]). Plaintiff was terminated on May 15,
2013 and, therefore, his April 22, 2015 request, for which no
toll was established, was not within the limitations period.
Plaintiff's remaining claims are either unpreserved or lacking in
merit.
Lynch, Devine, Clark and Aarons, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court