Miller v City of New York

Miller v City of New York 2011 NY Slip Op 08495 Decided on November 22, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 22, 2011
Moskowitz, J.P., Renwick, DeGrasse, Abdus-Salaam, JJ.
6146 112216/09

[*1]Adam Miller, Plaintiff-Respondent,

v

City of New York, et al., Defendants-Appellants.




Michael A. Cardozo, Corporation Counsel, New York (Julian L.
Kalkstein of counsel), for appellants.
Glass Krakower LLP, New York (Bryan D. Glass of counsel),
for respondent.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered March 17, 2011, which, to the extent appealed from, as limited by the briefs, denied defendants' motion to dismiss the tortious interference with contractual rights claim asserted against defendant Olga Livanis, unanimously affirmed, without costs.

A notice of claim is required as a condition precedent to commencing an action against an employee of the New York City Department of Education (Education Law § 3813[2]; General Municipal Law § 50-i), when, as in this case, the conduct complained of was engaged in as part of defendant's employment or
in the scope of her employment (Radvany v Jones, 184 AD2d 349 [1992]; see also Hale v Scopac, 74 AD3d 1906 [2010]; DeRise v Kreinik, 10 AD3d 381, 382 [2004]). Here, plaintiff did file a notice of claim which described in detail the time, place and manner of the conduct by Livanis that allegedly interfered with his tenure rights and continued employment with the DOE, as well as his ability to enter into employment with other schools. Although he did not use the words "tortious interference with contract," a notice of claim does not have to set forth a precise legal theory of recovery (DeLeonibus v Scognamillo, 183 AD2d 697, 698 [1992]; see also Simons v City of New York, 252 AD2d 451, 453 [1998]). "[T]he notice of claim described in sufficient detail the time, place and manner of the occurrence and plaintiff's damages to advise [*2]the City of the basis for the claim so as to have an opportunity to investigate" (id.; see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 547 [1983]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 22, 2011

CLERK