Cutaneo v. New York City Dept. of Educ.

2024 NY Slip Op 33478(U)

• Court: New York Supreme Court, Kings County
• Decided: September 26, 2024
• Docket: Index No. 509064/2024
• Status: Unpublished

Opinion

Cutaneo v New York City Dept. of Educ. 2024 NY Slip Op 33478(U) September 26, 2024 Supreme Court, Kings County Docket Number: Index No. 509064/2024 Judge: Gina Abadi Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 10/01/2024 INDEX NO. 509064/2024 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/02/2024

At an IAS Term, City Part 7 of the Supreme Cotut of the State of New York, held in and for the County of Kings·, at the Courthouse thereof at 360 Adams St., Brooklyn, Ne\V York, on the 26th day of September, 2024. PRESENT: HON. GINA ABADI, J.S.C.

CRAIG CUTANEO, Plaintiff:, Index No.: 509064/2024 -against- Motion Seq: 1-2 1

NEW YORK CITY DEPARTMENT OF EDUCATION; DECISION, ORDER, lvHCHAEL PRAYO:R, Superintendent of AND JUDGMENT District 21; in his Official and Individual Capacity; arid ANDREA CILIOTTA, Principal of Brooklyn Studio Secondary School, in her Official and Individual Capacity,

Defendants.

Recitation, as required \Jy CPLR § 2219(a), of the papers considered i11 the rev·ie\v of this motion:

Papers NYSCEF Numbered

Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed ........................ ...... . 6 c...13. 16 OpposingAffidaYits (Affin'natibns) .... , ................... ; .... . 18 RcplyAftidavits (Affirmations) ........................ ........ . 19-22 Other._ .... :._ ...... , ........ _...... __ . __ ._ ._ .. _... __...... _..... _. _. _. _. __ .·

Upon the foregoing cited papers and after oral argument, defendantsNewYorkCit y

Department of Education; Michael Prayor, Superintendent of District 21, in his Official

and Individual Capacity; ancl Andrea Ciliotta, Principal of Brooklyn Studio Secondary

School, in her Official and Tndi-vidual Capacity (co1lectively, defendants),jointly move,

pre-ans,vet, for an order_, pursuant to CPLR §§ 321 l(a) {l) and (7), dismissing the entirety

1 _Motion Seq. N t'1. I has been su persede

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of the Verified Complaint, dated March 29, 2024 (Verified Complaint or VC), of plaintiff

Craig Cutaneo(plaintift),

Plaintiff~ a tenured physical education teacher with the New York City Board of

Education, commenced this action for ntonetary and equitable relief based on:

( l) defendants··alleged age discrimination in violations of the New York State and New

Y mk City Huinnn Rights Law (the first and second causes ofaction) (VC, ~, l, 38-41, 43-

46 ); and (2) defendants' alleged breach ofthe ''Paste.Charge Stipulati(m of Settlement SED

#36)38,'" dated July 8, 2021 (the third and final cause of action) (VC, iii! 48-53).

1n . lieu of an. answer, . defendants . served the aforementioned . motion to dismiss,

contending (ainong other things) that the Verified Complaint should be dismissed on

account of plaintiff's failure to serve a predicate notice of claim as required by Education

Law § 3 813. Plaintiff does not dispute that he did not serve a notice of claim before

commencing this action, but contends (in Point IV of his Memorandum of Law in

Opposition at NYSCEF Doc No. 18}that his prior 'fdua\ filing with the [New York State

Department of Human Rights, artd with the Equal Employment Opportunity Commission]

satisfies the notice of claim requirements.'' Plaintiff is i11co1Tectas a matter of law. "What

satisfies a statute such as section 3813 ofthe Education Law is not knowledge of the wrong. . . .

What the statute exacts is notice of the claim [to the statutorily designated entity]."

Parochial Bus Sys., Inc. v Boa;-d ofEduc\ ofCit:y of NY, 60 NY2d539. 548 (1983} (internal . .

quotation marks and alterations omitted).

''Educatilm Law § 3813 (l) broadly requires the tiling of a notice of claim as a

condition precedent to an 'action ... for any cause \\-foitever,' which includes ... causes 2

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ofaction pursuant to the New York State [and the New York City] Human Rights Law[s].''

Se(fullahv City a/NY, 161 AD3d 1206, 1206 (24 Dept 2018). 'The essential elements to

be included in the notice are the nature of the claim, the time \Vhen, the place where and

the lilannet' in which the claim arose... . . Satisfaction of these requirements is a condition

precedent to bringing an action against a school district or a board of education and,

moreover, failure to present a claim withinthestatutoryti!nel imitation, .. isa fatal defect."

Pa,·ochial Bits Sys., 60 NY2d at 547 (1983) (internal citations omitted). See also Blaize v

New York City Dept o/Educ., 205 AD3d 871, 874(2d Dept 2022).

"Althoug;h the notice of claim requirement does not apply when a litigant seeks only

equitable reliet:or comnrences aprocceding to vindicate apublic interest, here. the plaintiff

Spught to vindicate a private tight.'' Saiitostejario i' Middle Country Cent. SchoolDist.,

156 AD3d 926, 927 (2d Dept 2017) (internal quotation marks and citations omitted). See

also Cavanaugh v Board a/Educ. of Huntington Union Free School Dist., 296 AD2d 369,

369 (2d Dept 2002) ("Where, as here, a plaintiff seeks private relief for employment

discrimination ih violation of the [New York State Human Rights] Law, the timely filing

of a notice of claim is a condition precedent to suit.'").

Under the cil'cm11stances of this case {including plaintiff's prior prosecution of his

age-discrimination suit against the Department of Edm:ation in federal ccmrt2 ), the Court,

in its discretion, declines topenrtit plaintiffto cure lhe procedural defect of failing to serve

2 See CutWJl.'O v New York Ciiy Dept. qf Edi1c., 2024 WL 3362215 (ED NY reb. 29, 2024}(inemorandum decision ""d iirder of d islll '"'"' \) (NY SC EF Doc .No. 12},

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his notice of claim prior to the comrnencc:ment of this action. See Matter of Silvernail v

Enlarged City School Dist. of Middletown , 40 AD3d I 004, I 005 (2d Dept 2007).

The Court has considered the parties' remaining contentions and found them moot

in light of its determination.

Accordingly, it is

ORDERED that defendants' pre-answer motion for an order, pursuant to CPLR §§

3211 (a) (l) and (7), dismissing the Verified Complaint is granted and the Verified

Complaint is dismissed in its entirety with prejudice and without costs or disbursements;

and it is further

ORDERED that the Corporation Counsel is directed to electronica\1y serve a copy

of this Decision, Order, and Judgment on plaintiff's counsel and to electronically file an

affidavit of service thereof with the Kings County Clerk.

The foregoing constitutes the Decision, Order, and Judgment of this Court.

HON. INA ABADI J. S. C.

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