N.Y. Education Law § 3813: Presentation of claims against the governing body of any school district or certain state supported schools

§ 3813. Presentation of claims against the governing body of any

school district or certain state supported schools. 1. No action or

special proceeding, for any cause whatever, except as hereinafter

provided, relating to district property or property of schools provided

for in article eighty-five of this chapter or chapter ten hundred sixty

of the laws of nineteen hundred seventy-four or claim against the

district or any such school, or involving the rights or interests of any

district or any such school shall be prosecuted or maintained against

any school district, board of education, board of cooperative

educational services, school provided for in article eighty-five of this

chapter or chapter ten hundred sixty of the laws of nineteen hundred

seventy-four or any officer of a school district, board of education,

board of cooperative educational services, or school provided for in

article eighty-five of this chapter or chapter ten hundred sixty of the

laws of nineteen hundred seventy-four unless it shall appear by and as

an allegation in the complaint or necessary moving papers that a written

verified claim upon which such action or special proceeding is founded

was presented to the governing body of said district or school within

three months after the accrual of such claim, and that the officer or

body having the power to adjust or pay said claim has neglected or

refused to make an adjustment or payment thereof for thirty days after

such presentment. In the case of an action or special proceeding for

monies due arising out of contract, accrual of such claim shall be

deemed to have occurred as of the date payment for the amount claimed

was denied.

2. Notwithstanding anything to the contrary hereinbefore contained in

this section, no action or special proceeding founded upon tort shall be

prosecuted or maintained against any of the parties named in this

section or against any teacher or member of the supervisory or

administrative staff or employee where the alleged tort was committed by

such teacher or member or employee acting in the discharge of his duties

within the scope of his employment and/or under the direction of the

board of education, trustee or trustees, or governing body of the school

unless a notice of claim shall have been made and served in compliance

with section fifty-e of the general municipal law. Every such action

shall be commenced pursuant to the provisions of section fifty-i of the

general municipal law; provided, however, that this section shall not

apply to: (i) any claim to recover damages for physical, psychological,

or other injury or condition suffered as a result of conduct which would

constitute a sexual offense as defined in article one hundred thirty of

the penal law committed against a child less than eighteen years of age,

incest as defined in section 255.27, 255.26 or 255.25 of the penal law

committed against a child less than eighteen years of age, or the use of

a child in a sexual performance as defined in section 263.05 of the

penal law committed against a child less than eighteen years of age; or

(ii) any civil claim or cause of action revived pursuant to section

two hundred fourteen-j of the civil practice law and rules.

2-a. Upon application, the court, in its discretion, may extend the

time to serve a notice of claim. The extension shall not exceed the time

limited for the commencement of an action by the claimant against any

district or any such school. In determining whether to grant the

extension, the court shall consider, in particular, whether the district

or school or its attorney or its insurance carrier or other agent

acquired actual knowledge of the essential facts constituting the claim

within the time specified in subdivision one of this section or within a

reasonable time thereafter. The court shall also consider all other

relevant facts and circumstances, including: whether the claimant was an

infant, or mentally or physically incapacitated, or died before the time

limited for service of the notice of claim; whether the claimant failed

to serve a timely notice of claim by reason of his justifiable reliance

upon settlement representations made by an authorized representative of

the district or school or its insurance carrier; whether the claimant in

serving a notice of claim made an excusable error concerning the

identity of the district or school against which the claim should be

asserted; and whether the delay in serving the notice of claim

substantially prejudiced the district or school in maintaining its

defense on the merits.

An application for leave to serve a late notice shall not be denied on

the ground that it was made after commencement of an action against the

district or school.

Nothing contained in this subdivision shall affect claims arising out

of contracts entered into by the parties before the effective date of

this subdivision; nor shall anything contained in this subdivision

affect non-contractual claims which have accrued before the effective

date of this subdivision.

2-b. Except as provided in subdivision two of this section and,

notwithstanding any other provision of law providing a longer period of

time in which to commence an action or special proceeding, no action or

special proceeding shall be commenced against any entity specified in

subdivision one of this section more than one year after the cause of

action arose; provided, however, that nothing contained in this

subdivision shall be deemed to modify or supersede any provision of law

specifying a shorter period of time in which to commence an action or

special proceeding against any such entity. For purposes of this

subdivision, a cause of action against the school district of residence

for reimbursement of tuition costs incurred pursuant to subdivision four

of section thirty-two hundred two of this chapter by the school district

in which a family home at board is located shall arise as of the date

payment for the amount claimed was denied.

3. The provisions of this section shall not supersede, alter or affect

the provisions of section twenty-five hundred twelve of this chapter.

4. In any action for personal injuries by a passenger on a school bus

against a school district, school bus operator under contract with a

school district, or any agent or employee of a district or operator

(including, but not limited to, bus drivers, matrons, teachers serving

as chaperones and volunteers) no such person shall be held liable solely

because the injured party was not wearing a seat safety belt; provided,

however, that nothing contained herein shall be construed to grant

immunity from liability for failure to:

(a) maintain in operating order any equipment required by statute,

rule or regulation;

(b) comply with applicable statutes, rules or regulations.