Monks v. Manch

33 A.D.2d 989, 307 N.Y.S.2d 391, 1970 N.Y. App. Div. LEXIS 5763

Opinion

Judgment and order unanimously modified, without costs, to permit appellant to serve an amended petition, within 20-days after date of order to be entered hereon, containing allegations showing compliance with subdivision 1 of section 2562 of the Education Law. Memorandum: In this article 78 proceeding petitioner sought a recomputation of his result and standing with respect to a competitive civil service examination for assistant principal, claiming that a portion of the examination was contrary to law and conducted in an arbitrary, capricious and discriminatory manner. The petition was dismissed for failure to comply with subdivision 1 of section 2562 of the Education Law which provides in part: "1. No action or special proceeding, for any cause whatever shall be prosecuted or maintained against a board of education * * * unless it shall appear by and as an allegation in the complaint * * 9 that at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the said board of education for adjustment, and that the officer or body having power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after said presentation.” While this section requires a demand and 30-day waiting period, it is silent as to the form or contents of the demand. Since the statute does not specifically require that it be presented in writing, an oral demand would suffice. Petitioner should be given an opportunity to amend the petition to allege an oral demand. (Appeal from judgment and order of Erie Special Term dismissing petition.) Present — Goldman, P. J., Marsh, Gabrielli, Moule and Bastow, JJ.