State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 523003 

________________________________

DAVID A. SAGER,

Appellant,

v MEMORANDUM AND ORDER

COUNTY OF SULLIVAN,

Respondent.

________________________________

Calendar Date: October 11, 2016

Before: Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.

__________

Sussman & Watkins, Goshen (Michael H. Sussman of counsel),

for appellant.

Drake Loeb, PLLC, New Windsor (Stephen J. Gaba of counsel),

for respondent.

__________

Peters, P.J.

Appeal from an order of the Supreme Court (Schick, J.),

entered June 23, 2015 in Sullivan County, which, among other

things, granted defendant's motion for summary judgment

dismissing the complaint.

In June 2013, plaintiff commenced this action against

defendant, his former employer, asserting a claim for improper

termination from his position as Deputy Commissioner of the

Sullivan County Department of Social Services in violation of

Civil Service Law § 75-b, the Public Sector Whistleblower Law.

Plaintiff alleged that his employment had been terminated in

retaliation for reporting illegal and negligent conduct by

Department staff. Defendant thereafter moved to dismiss the

complaint based upon, among other grounds, plaintiff's failure to
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file a notice of claim.1 In response, plaintiff cross-moved to

deem his verified complaint a notice of claim. Supreme Court

denied plaintiff's motion, granted defendant's motion and

dismissed the complaint based upon plaintiff's failure to file a

notice of claim. Plaintiff appeals. 

Defendant was entitled to dismissal of the complaint based

upon plaintiff's noncompliance with the notice of claim condition

precedent of General Municipal Law § 50-e, as applicable to

counties pursuant to County Law § 52 (see Mills v County of

Monroe, 59 NY2d 307, 309 [1983], cert denied 464 US 1018 [1983];

Grasso v Schenectady County Pub. Lib., 30 AD3d 814, 816-817

[2006]; Matter of Rigle v County of Onondaga, 267 AD2d 1088,

1088-1089 [1999], lv denied 94 NY2d 764 [2000]; see also Thomas v

City of Oneonta, 90 AD3d 1135, 1135-1136 [2011]). As relevant

here, County Law § 52 (1) broadly provides that "[a]ny claim . .

. against a county for damage [or] injury . . . and any other

claim for damages arising at law or in equity, alleged to have

been caused . . . by or because of any misfeasance, omission of

duty, negligence or wrongful act on the part of the county, its

officers, agents, servants or employees, must be made and served

in compliance with [General Municipal Law § 50-e]" (see Mills v

County of Monroe, 59 NY2d at 309 n). Here, plaintiff's complaint

sought damages for wrongful termination and, thus, pursuant to

County Law § 52 (1), General Municipal Law § 50-e (1) (a)

required service of a notice of claim within 90 days after the

claim for retaliatory termination arose. It is undisputed that

plaintiff failed to serve a notice of claim, entitling defendant

to dismissal of the complaint (see Grasso v Schenectady County

Pub. Lib., 30 AD3d at 816-817; Matter of Rigle v County of

Onondaga, 267 AD2d at 1088-1089).

1 Although defendant moved to dismiss the complaint

pursuant to CPLR 3211 (a) (7), defendant had filed an answer and,

thus, its motion should have been denominated as one for summary

judgment under CPLR 3212 dismissing the complaint on grounds

asserted in its answer (see Matter of Andrews v State of New

York, 138 AD3d 1297, 1298 n 1 [2016], lv denied 27 NY3d 912

[2016]).
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Plaintiff's reliance on appellate decisions involving

complaints asserting a Civil Service Law § 75-b or similar claims

against cities, in which the courts have ruled that the filing of

a notice of claim is not required (see Margerum v City of

Buffalo, 24 NY3d 721, 730 [2015]; Castro v City of New York, 141

AD3d 456, 458 [2016]), is misplaced. The cases cited by

plaintiff involve claims against cities to which the more narrow

notice of claim provisions of General Municipal Law §§ 50-e and

50-i apply, limiting the requirement for notices of claim to

"tort" claims (General Municipal Law § 50-e [1] [a]) or claims

for "personal injury, wrongful death or damage to real or

personal property" (General Municipal Law § 50-i [1]). By

comparison, County Law § 52 applies to the claim against

defendant, the County of Sullivan, and mandates notices of claim

in a much broader scope of matters than the General Municipal Law

(see Castro v City of New York, 141 AD3d at 457-458), requiring

that a notice of claim be filed for "[a]ny claim . . . against a

county for damage" or "any other claim for damages arising at law

or in equity" (emphases added).2 

In light of plaintiff's failure to comply with the notice

of claim provision of General Municipal Law § 50-e, as imposed by

County Law § 52, defendant's motion was properly granted. 

Plaintiff's contention that the exception to the notice of claim

requirement for actions brought to vindicate public – as opposed

to private – rights was raised for the first time on appeal and,

accordingly, it is not preserved for our review (see CPLR 5501

[a] [3]; Liere v State of New York, 123 AD3d 1323, 1323-1324

[2014]). In any event, this exception is inapplicable as

plaintiff's alleged retaliatory conduct related only to himself

and sought compensation for harm caused to him alone and did not

2 Although plaintiff asserts that County Law § 52 is

limited by its heading – "Presentation of Claims for torts;

Commencement of actions" – it is well-accepted that "the words of

a statute may be broader than its heading" (McKinney's Cons Laws

of NY, Book 1, Statutes § 123 [b], Comment at 249), and that a

heading "may not alter or limit the effect of unambiguous

language in the body of the statute itself" (McKinney's Cons Laws

of NY, Book 1, Statutes § 123 [a]). 
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seek to vindicate a public interest (see Mills v County of

Monroe, 59 NY2d at 311-312). 

With regard to plaintiff's cross motion for leave to file a

late notice of claim by deeming his complaint a notice of claim,

it was properly denied. An application to file a late notice of

claim must be made not more than one year and 90 days after the

cause of action accrued, unless a toll is established (see

General Municipal Law § 50-e [5]; Pierson v City of New York, 56

NY2d 950, 954 [1982]; Mindy O. v Binghamton City School Dist., 83

AD3d 1335, 1336 [2011]; see also Campbell v City of New York, 4

NY3d 200, 203, 209 [2005]). Plaintiff was terminated on May 15,

2013 and, therefore, his April 22, 2015 request, for which no

toll was established, was not within the limitations period. 

Plaintiff's remaining claims are either unpreserved or lacking in

merit.

Lynch, Devine, Clark and Aarons, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court