Cervenka v. New York City Transit Authority

In an action to recover damages for employment discrimination pursuant to Executive Law § 296, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Sangiorgio, J.), entered February 3, 1994, as, upon reargument, denied that branch of the defendant’s motion which was to dismiss the plaintiff’s first cause of action based on her failure to serve a notice of claim. Ordered that the order is affirmed insofar as appealed from, with costs. Pursuant to Public Authorities Law § 1212 (2): "An action against the authority founded on tort shall not be commenced more than one year and ninety days after the happening of the event upon which the claim is based, nor unless a notice of claim shall have been served on the authority within the time limited, and in compliance with all the requirements of section fifty-e of the general municipal law”. Inasmuch as an action brought pursuant to Executive Law § 296 is not a tort action (see, Lane-Weber v Plainedge Union Free School Dist., 213 AD2d 515), the plaintiff was not required to serve a notice of claim on the defendant. Mangano, P. J., O’Brien, Ritter, Pizzuto and Florio, JJ., concur.