Court Dismisses State/City Human Rights Law Employment Discrimination Claims Against NYC Community College (BMCC) Due to Failure to File Notice of Claim

In Washington v. Borough of Manhattan Cmty. Coll., No. 16 CIV. 6168 (PAE), 2016 WL 7410717 (S.D.N.Y. Dec. 21, 2016), the Southern District of New York dismissed plaintiff’s claims under the New York State and City Human Rights Laws against the Borough of Manhattan Community College, since she did not comply with the notice of claim requirement of New York Education Law § 6224.

Judge Engelmayer summarized the law:

Section 6224 states, in relevant part, that a plaintiff may not bring a claim “involving a community college of the city university of New York” unless the plaintiff alleges in her complaint that she has given the city university notice of her demands and an opportunity to respond. N.Y. Educ. L. § 6224(2). Section 6224 expressly incorporates the requirements of General Municipal Law §§ 50-e and 50-i, which include [a] requirement of filing a notice of claim within 90 days as a condition precedent to bringing suit against a community college of the City University of New York (CUNY).

The notice of claim requirement [] applies to all claims. Courts have held that a plaintiff who fails to file a timely notice of claim cannot maintain state and city law discrimination claims against a New York City community college.

The court rejected plaintiff’s argument that, under Margerum v. City of Buffalo, 24 N.Y.3d 721 (2015), “the notice of claim requirement does not apply to her discrimination claims because they are based on human rights law.”

Judge Engelmayer explained that “Margerum held only that the notice of claim requirements of General Municipal Law §§ 50-e and 50-i do not apply in an action based on the Human Rights Law in a jurisdiction where General Municipal Law §§ 50-e and 50-i provide the only notice of claim criteria” and “did not involve a claim against an educational institution and, consequently, did not present a situation in which, as here, Section 6224 of the New York Education Law provided alternate notice of claim criteria.” (Emphasis supplied by court.)

The court also rejected plaintiff’s attempt to grant her leave to file a late notice of claim:

This Court is not the proper forum for that request. Under New York General Municipal Law § 50-e(7), an application for the filing of a late notice of claim must be made in state court. N.Y. Gen. Mun. Law § 50-e(7). Until the state legislature amends § 50-e(7) to include federal trial courts,” this Court has no choice but to dismiss for lack of jurisdiction [an] application to file a late notice of claim or to have [a] notice of claim deemed timely filed.

It did, however (without analysis) permit plaintiff’s Title VII, Americans with Disabilities Act, and Age Discrimination in Employment Act claims against BMCC to proceed.