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This entry was published on 2019-02-15
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SECTION 3813
Presentation of claims against the governing body of any school district or certain state supported schools
Education (EDN) CHAPTER 16, TITLE 5, ARTICLE 77
§ 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 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.

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.