This action involved a claim of “fraudulent inducement”wherein the employee claimed that she was “induced … to accept apromotion” that resulted in her loss of union protection and other benefits aswell as the imposition of a one-year probationary period.
When theemployee was terminated from the new position prior to the end ofthe probationary period, she filed a petition alleging “fraudulent inducement.”* Supreme Court dismissed this allegation, holding that thenotice of claim that had been filed pursuant to General Municipal Law §50-e was untimely.
TheAppellate disagreed with this result, explaining that “An action based uponfraud accrues for purposes of General Municipal Law §50-e when the fraudulentact is committed or when ‘the plaintiff or the person under whom the plaintiffclaims discovered the fraud, or could with reasonable diligence have discoveredit,’ whichever occurs later,” citing CPLR §213[8]. Otherwise, said the Appellate Division, municipalities would havean incentive to conceal the damages and, or, injuries stemming from a fraudulentact until the 90-day period under §50-e had passed, leaving potentialplaintiffs with no recourse aside from an application for leave to serve a latenotice of claim.
In thisinstance, said the court, the petitioner was unable to assert a cause of actionfor fraudulent inducement until she sustained damages resulting from the fraud,i.e., when she was terminated from her new position during its probationaryperiod. She did, however, timely served her notice of claim within 90 days ofher termination.
Thecourt, however, agreed Cayuga’s alternative ground for affirmance of theSupreme Court’s ruling -- the complaint should have been dismissed becauseplaintiff failed to plead with sufficient particularity the facts underlyingher fraudulent inducement claim as required by CPLR 3016(b).
As theplaintiff had, in fact, failed to satisfy the requirements of CPLR 3016(b), theAppellate Division held that Supreme Court “properly dismissed the complaint tothe extent that it was not withdrawn by plaintiff,” but noted that "[t]hedismissal . . . [was] without prejudice to an application by plaintiff toSupreme Court for leave to serve an amended complaint with regard to th[e]cause of action [for fraudulent inducement]."
In contrast, a notice of claim pursuant to Education Law §3813(1)is not a condition precedent to an Article 78 proceeding seeking to vindicate apublic interest [Matter of Cayuga-Onondaga Counties Bd. of Coop. Educ.Servs., 89 NY2d 395]. As it is well settled that the tenure rights ofteachers are a matter of public interest, the notice of claim provisions ofEducation Law §3813(1) are not applicable to cases seeking to enforce such[Sephton v Board of Educ. of City School Dist. of City of New York, 99 AD2d509, 510 (2d Dept), appeal denied 62 NY2d 605].
Another aspect of summary termination to consider: in a disciplinary action typically an aggrieved party has a statutory** or Taylor Law contract right to appeal an adverse determination by the appointing authority or an arbitrator or arbitration panel.
A temporary or provisional employee or probationary employee*** who has completed his or her minimum period of probation does not have a statutory right to appeal his or her termination except where he or she alleges the dismissal was in violation of his or her constitutional rights or was unlawfully discriminatory.
* The plaintiff had withdrawn other causes of action,maintaining only the claim alleging fraudulent inducement.”
** See, for example, §76 of the Civil Service Law and §3202-a.5 of the Education Law. Appeals under §76 may be appealed to the responsible civil service commission [within 30-days of the decision] or as provided by Article 78 of the CPLR while §3202-a.5 appeals are to filed pursuant to Article 75 of the CPLR but must be filed within 10 days of the determination of the arbitrator or the arbitration panel.
*** Insome instances a probationary employee may have a contractual right to challengehis or her termination as set out in a Taylor Law agreement.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00840.htm
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