1st Dept. Holds That Notice of Claim Requirement Does Not Apply to Civil-Service Whistleblower Retaliation Claims

In Castro v. City of New York, No. 1036, 2016 WL 3919217(N.Y. App. Div. 1st Dept. July 21, 2016), the court held that a plaintiff asserting a claim under Civil Service Law § 75-b – the public-sector-employee whistleblower statute – is not required to file a notice of claim.

That statute, as summarized by the court, “forbids retaliatory or personnel action concerning, inter alia, compensation, promotion, transfer, or evaluation of performance, by public employers against their employees who disclose to a governmental body information regarding violations of regulations that would present a specific danger to public health or safety.”

The court explained:

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.” General Municipal Law § 50-i(1) precludes commencement of an action against a city “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,” unless a notice of claim has been served in compliance with section 50-e. …

[I]n Margerum v City of Buffalo (24 NY3d 721 [2015]) (Ed: link to decision], the Court of Appeals held that the notice of claim requirements of General Municipal Law §§ 50-e and 50-i did not apply to the firefighters’ disparate treatment racial discrimination claim under the New York State Human Rights Law. In reaching this determination, the Court stated succinctly that “[h]uman rights claims are not tort actions under 50-e and are not personal injury, wrongful death, or damage to personal property claims under 50-i. Nor do we perceive any reason to encumber the filing of discrimination claims” (Margerum, 24 NY3d at 730).

In light of Margerum, we now find that a notice of claim is not required for a Civil Service Law § 75-b claim. As with the Human Rights Law claims that were the subject of Margerum, Civil Service Law § 75-b claims are not tort actions under 50-e and are not personal injury, wrongful death, or damage to personal property claims under 50-i, and there is no reason to encumber the filing of a retaliatory termination claim.

It also held that, even if a notice of claim was required, plaintiff’s notice of claim was “sufficient to allow the City to investigate his Civil Service Law § 75–b claim, even though it did not cite the section.”