In Arnold v Town of Camillus, No. 22-01774, 831, 202 N.Y.S.3d 839, 2023 N.Y. Slip Op. 06627, 2023 WL 8865653 (N.Y.A.D. 4 Dept., Dec. 22, 2023), the court addressed the “Notice of Claim” requirement in the context of employment discrimination claims asserted under the New York State Human Rights Law.
The court summarized the facts and issues as follows:
Plaintiff, a police officer previously employed by defendant Town of Camillus (Town), commenced this action in October 2020 seeking to recover damages based on allegations that, inter alia, defendants violated the Human Rights Law (Executive Law § 290 et seq.) by discriminating against her on the basis of gender, subjecting her to a hostile work environment, constructively discharging her from employment, and retaliating against her after she complained about the alleged unlawful discriminatory practices. Plaintiff alleged, in pertinent part, that defendant Captain James Nightingale, who was her superior, subjected her to sexual harassment, including inappropriate and uninvited touching, and disparate treatment based on her gender, and that defendant Police Chief Thomas Winn responded with hostility and failed to adequately address Nightingale’s behavior after plaintiff repeatedly brought the discriminatory conduct to Winn’s attention, all of which precipitated her resignation from the Town’s police department in August 2019. Plaintiff moved, simultaneously with the filing of the complaint, for a “declaration” that she was not required to serve a notice of claim for her Human Rights Law claims asserted in the third and fourth causes of action, as well as for leave to serve a late notice of claim regarding her state law tort claims and, if required, her Human Rights Law claims.
Upon considering the law, the court held that under the circumstances the plaintiff was indeed required to file a Notice of Claim:
[T]he case before us does not involve “a jurisdiction where General Municipal Law §§ 50-e and 50-i provide the only notice of claim criteria” (id. at 730, 5 N.Y.S.3d 336, 28 N.E.3d 515 [emphasis added]). Instead, Town Law § 67 provides in relevant part that “[a]ny claim … which may be made against [a] town … for damages for wrong or injury to person or property or for the death of a person, shall be made and served in compliance with [General Municipal Law § 50-e]” (Town Law § 67 [1]) and that “[e]very action upon such claim shall be commenced pursuant to the provisions of [General Municipal Law § 50-i]” (Town Law § 67 [2]). Plaintiff contends that the scope of Town Law § 67 is the same as that of General Municipal Law §§ 50-e and 50-i such that the reasoning in Margerum applies equally to each statute, thereby rendering a notice of claim unnecessary for her Human Rights Law claims. We conclude that the statutory text and precedent demonstrate that plaintiff’s contention lacks merit.
Town Law § 67 broadly applies to any claim against a town defendant for damages in five categories: (1) for wrong to person; (2) for injury to person; (3) for wrong to property; (4) for injury to property; and (5) for the death of a person (see Town Law § 67 [1]). By contrast, General Municipal Law § 50-i requires a notice of claim only for those actions involving claims “for personal injury, wrongful death or damage to real or personal property” (General Municipal Law § 50-i [1]). Even if, as plaintiff posits, there is no meaningful distinction between a claim for “injury to person” (Town Law § 67 [1]) and a claim for “personal injury” (General Municipal Law § 50-i [1]), the language of Town Law § 67 is still broader than its General Municipal Law counterpart because it also includes any claim against a town defendant for damages for a “wrong … to person” (Town Law § 67 [1]). Consistent with the purpose of the Human Rights Law, unlawful discrimination and retaliation is undoubtably considered a wrong against a person (see Executive Law § 290 [3]). Thus, the plain, unambiguous text of Town Law § 67 directs that a notice of claim is required for an action alleging violations of the Human Rights Law.
Plaintiff nonetheless points to the title of Town Law § 67—“Presentation of claims for torts: actions against towns”—in support of her argument that the statute applies only to torts, which do not include Human Rights Law claims. Plaintiff’s reliance on the title is unavailing because, “[w]hile a title or heading may help clarify or point the meaning of an imprecise or dubious provision, it may not alter or limit the effect of unambiguous language in the body of the statute itself” (Squadrito v. Griebsch, 1 N.Y.2d 471, 475, 154 N.Y.S.2d 37, 136 N.E.2d 504 [1956]) and, here, the unambiguous language in the body of Town Law § 67 does not limit its coverage to tort actions only (cf. General Municipal Law § 50-e [1] [a]).
In considering the text of Town Law § 67, Departments of the Appellate Division have concluded that “[s]uch language is broad enough to include an employment discrimination claim based on Executive Law § 296” (Picciano, 290 A.D.2d at 170, 736 N.Y.S.2d 55; see Scopelliti v. Town of New Castle, 210 A.D.2d 308, 309, 620 N.Y.S.2d 405 [2d Dept. 1994]; see also *844 Thygesen v. North Bailey Volunteer Fire Co., Inc., 106 A.D.3d 1458, 1460, 964 N.Y.S.2d 816 [4th Dept. 2013]). Contrary to plaintiff’s assertion, the Court of Appeals’ decision in Margerum did not alter the aforementioned case law. Margerum simply endorsed what Departments of the Appellate Division had already said, i.e., that service of a notice of claim is not a condition precedent to commencement of an action based upon the Human Rights Law in a jurisdiction where General Municipal Law §§ 50-e and 50-i provide the only notice of claim criteria (see Margerum, 24 N.Y.3d at 730, 5 N.Y.S.3d 336, 28 N.E.3d 515). Here, however, Town Law § 67 provides additional notice of claim criteria and contains different, broader language that covers causes of action based on the Human Rights Law.
The court further explained that it would exercise its discretion to permit plaintiff to serve a late notice of claim as to plaintiff’s NYS Human Rights Law claims.