In a landmark decision overturning more than 20 years of precedent, New York’s Appellate Division, First Department recently held that a city employee is not required to file a Notice of Claim with the city before suing as a whistleblower.
Under New York law, an individual who wants to sue a city for claims for tort, personal injury, wrongful death or damage to real or personal property must first file with the city within 90 days a “Notice of Claim” alerting the city to the injury and providing certain details. Over 20 years ago, the New York appellate courts extended this rule to city employees who filed whistleblower claims against their employer and required city employees to comply with onerous Notice of Claim requirements. Given that terminated employees generally do not meet with attorneys immediately after termination, as a result of the incredibly short 90-day time frame, many potential plaintiffs have missed this deadline and watched their meritorious claims slip away.
In 2014, attorneys at Fisher Taubenfeld LLP (previously Serrins Fisher) brought Castro v. City of New York on behalf of Robert Castro, a Manager and Certified Fire Safety Director employed by the New York City Department of Homeless Services. Mr. Castro was responsible for inspecting homeless shelters, and DHS and the City of New York terminated Mr. Castro after he repeatedly informed them of the unsafe conditions of the shelters and refused to falsify his reports to make the shelters appear safe.
The City of New York tried to dismiss the case because Mr. Castro’s previous attorney had allegedly filed an inadequate Notice of Claim. The trial court agreed with the City of New York and dismissed Mr. Castro’s claim.
On appeal, Michael Taubenfeld, Esq., now a partner at Fisher Taubenfeld LLP, argued that the trial court mistakenly required Mr. Castro to file a Notice of Claim even though his whistleblower claim was not a tort, personal injury, wrongful death or damage to real or personal property. Although acknowledging that the Appellate Division, First Department had since 1994 required a Notice of Claim in whistleblower cases, Mr. Taubenfeld argued that a recent New York State Court of Appeals (New York’s highest court) decision, Margerum v. City of Buffalo, clarified that only tort, personal injury, wrongful death or damage to real or personal property cases require a Notice of Claim and that the Appellate Division should overrule its prior precedents. The Appellate Division agreed and reinstated Mr. Castro’s case, agreeing that whistleblower claim was not a tort, personal injury, wrongful death or damage to real or personal property and that a whistleblowing city employee does not need to file a Notice of Claim.
This decision will have far reaching consequences for city employees. City employees working in Manhattan and the Bronx no longer need to file a Notice of Claim before asserting a whistleblower claim. These employees now have a year to bring a whistleblower claim. Employees unsure about their rights may contact Fisher Taubenfeld LLP for a free phone consultation.