Gurrieri et al v. County Of Nassau et al
MEMORANDUM OF DECISION & ORDER - The Plaintiffs' 20 motion to amend is granted in part and denied in part. The Defendants' 9 partial motion to dismiss is granted in its entirety. The Plaintiffs' motion to amend is granted to the ex tent that they may add the facts regarding Ambulance Medical Technician Coordinators on Duty Chart 7; that Plaintiffs worked 48-hour weeks numerous times per year; and that other departments' overtime rates are not calculated correctly. The Pla intiffs motion to amend is denied without prejudice to the extent that they seek to add facts concerning their service of notices of claim on the Defendants. As discussed above, because the notices were filed late, that amendment would be futile. The Plaintiffs claims' against the NCPD and the NCCSC are dismissed, and the Clerk of the Court is respectfully directed to terminate them as parties. The Plaintiffs' overtime claims will be limited to those weeks where they worked more t han 40 hours, not owing to a mutual or shift swap. The Plaintiffs' NYLL claims are dismissed without prejudice with leave to refile upon obtaining an order from a New York State court of competent jurisdiction stating that the late notices of cl aim were proper. At this time, only the Plaintiffs' FLSA overtime claims remain against Nassau County, for those weeks when they worked more than 40 hours not due to mutual or shift swaps. The Plaintiffs are directed to notify this Court within fourteen days of the entry of this order whether they intend to obtain relief as to their NYLL claims in the New York State courts. In the event that the Plaintiffs express their intent to seek such relief, the matter will be stayed for a reasonable period of time pending the decision of the state court. Nassau County Civil Service Commission and Nassau County Police Department terminated. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 8/9/2017. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
RONALD GURRIERI, DIANE MCCAULEY,
LAWRENCE LOISELLE, MARY TEDESCO,
and all others similarly situated,
1:17 pm, Aug 09, 2017
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
DECISION & ORDER
-againstCOUNTY OF NASSAU, NASSAU COUNTY
POLICE DEPARTMENT, NASSAU COUNTY
CIVIL SERVICE COMMISSION,
Law Offices of Louis D. Stober, Jr., LLC
Attorneys for the Plaintiffs
98 Front Street
Mineola, NY 11501
Louis D. Stober, Jr., Esq., Of Counsel
Bee Ready Fishbein Hatter & Donovan, LLP
Attorneys for the Defendants
170 Old Country Road, Suite 200
Mineola, NY 11501
Deanna Darlene Panico, Esq.,
Michael Paul Siravo, Esq., Of Counsel
SPATT, District Judge:
The Plaintiffs Ronald Gurrieri (“Gurrieri”), Diane McCauley (“McCauley”), Lawrence
Loiselle (“Loiselle”), Mary Tedesco (“Tedesco”), and Edward Donoghue (“Donoghue”),
commenced this putative class action on behalf of themselves and others similarly situated
(collectively, the “Plaintiffs”) against the Defendants County of Nassau (the “County”), the Nassau
County Police Department (the “NCPD”), and the Nassau County Civil Service Commission (the
“NCCSC”) (collectively, the “Defendants”), alleging that the Defendants violated the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the New York Labor Law (“NYLL”) by
failing to pay them overtime.
Presently before the Court are two motions: a motion by the Defendants pursuant to Federal
Rule of Civil Procedure (“FED. R. CIV. P.” or “Rule”) 12(b)(6) to dismiss the complaint; and a
motion by the Plaintiffs pursuant to Rule 15 to amend their complaint. For the following reasons,
the Defendants’ motion to dismiss is granted in its entirety; and the Plaintiffs’ motion to amend in
granted in part and denied in part.
A. The Relevant Facts
The following facts are drawn from the complaint, and are accepted as true for the purposes
of both instant motions.
Each of the named Plaintiffs currently work for the NCPD as Ambulance Medical
Technicians, Ambulance Medical Technician Supervisors, or Ambulance Medical Technician
Coordinators (collectively, “AMTs”). The Plaintiffs state that the NCCSC is “responsible for the
classification of county positions and establishment of compensation for county employees.”
(Compl. ¶ 14).
There are approximately 130 AMTs in the NCPD. The 1996 MOU Pilot Program (the
“1996 Agreement”), which the Court assumes is a collective bargaining agreement, provided a
schedule for AMTs. Under the schedule, the AMTs work a four week cycle. During weeks 1 and
2 of the cycle, AMTs work three consecutive 12 hour days, followed by four days off. During
week 3, AMTs work three 12-hour days “followed by three calendar days off.” (Id. ¶ 37). During
week 4, AMTs work three consecutive 12-hour days followed by four days off.
The 1996 Agreement allegedly defines overtime as any work exceeding 36 hours per week.
However, some AMTs are required to work three extra 12-hour days per year, which are known
as “supplemental days.” Among those AMTs who had to work the three extra-12 hour days were
the Ambulance Medical Technicians, and Ambulance Medical Technician Supervisors assigned
to Duty Chart 7. The Plaintiffs were among those AMTs who had to work three supplemental
days per year. Therefore, the Court assumes that the Plaintiffs were assigned to Duty Chart 7.
The Plaintiffs state that in 2000, the CSEA, who they do not identify, entered into a
memorandum of agreement with Nassau County (the “2000 Agreement”). The 2000 Agreement
made the schedule set out in the 1996 Agreement permanent.
The Plaintiffs allege that they were not compensated at overtime rates for their
supplemental days. The Plaintiffs claim that when they worked more than 36 hours, they should
have been compensated at overtime rates.
Despite the fact that they only work 72 hours every two weeks, AMTs’ paychecks state
that they work 80 hours. When AMTs overtime rates are calculated, their hourly wage is calculated
by dividing 80 hours by their normal pay.
Therefore, the Plaintiffs allege, they are
undercompensated for their overtime work when they do receive overtime pay.
The Plaintiffs state that “[o]ther departments in the [NCPD], including the
Communications Bureau Operators, work similar 12-hour shifts per week and their overtime
rate[s] are calculated correctly.” (Compl. ¶ 53).
Finally, the Plaintiffs assert that when they “change tours” or trade shifts with other
employees, and end up working more than 36 hours due to the change or trade, they are not
compensated at overtime rates. Shift trades are known as “mutuals.”
1. Additional Facts from the Proposed Amended Complaint
The Plaintiffs seek to add or edit the following facts in their proposed amended complaint
Ambulance Medical Technician Coordinators were among those individuals who were
assigned to Duty Chart 7 who had to work three extra 12 hour shifts per year.
Instead of claiming that they worked three 48-hour weeks per year, the PAC alleges that
the Plaintiffs worked 48-hour weeks “numerous times per year.”
Contrary to the original complaint’s allegations, the PAC states that “[o]ther departments
in the [NCPD], including Communications Bureau Operators, work similar 12-hour shifts per
week and their overtime rates are not calculated correctly.” (PAC ¶ 53) (emphasis added to
illustrate the edit). The Plaintiffs contend that the statement in the original complaint that the
Communications Bureau Operators’ rates were calculated correctly was a “scrivener’s error.”
(Decl. of Louis D. Stober, Jr., Esq. (ECF No. 20-1), ¶ 12).
Finally, the Plaintiffs state that they filed notices of claim on the Defendants on March 13,
B. The Relevant Procedural History
On December 19, 2016, the Plaintiffs filed their initial complaint. The complaint alleged
that the Defendants failed to pay the Plaintiffs for their overtime in violation of the FLSA and the
On February 23, 2017, the Defendants filed the instant motion to partially dismiss the
complaint pursuant to Rule 12(b)(6).
On March 13, 2017, the Plaintiffs served Notices of Claim on the Defendants pursuant to
New York County Law Section 52.
On April 12, 2017, the Plaintiffs filed a motion to amend their complaint pursuant to
Rule 15. The Plaintiffs seek to amend three paragraphs and add one paragraph.
A. The Legal Standard for a Motion to Amend
FED. R. CIV. P. 15(a)(2) applies to motions to amend the pleadings once the time for
amending a pleading as a matter of right has expired. It states, in pertinent part, that “a party may
amend its pleading only with the opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires.” Courts have construed the rule liberally and
have said that “the purpose of Rule 15 is to allow a party to correct an error that might otherwise
prevent the court from hearing the merits of the claim.” Safety-Kleen Sys., Inc. v. Silogram
Lubricants Corp., No. 12–CV–4849, 2013 WL 6795963, at *2 (E.D.N.Y. Dec. 23, 2013) (quoting
Chapman v. YMCA of Greater Buffalo, 161 F.R.D. 21, 24 (W.D.N.Y. 1995)); see also Williams v.
Citigroup Inc., 659 F.3d 208, 212–13 (2d Cir. 2011) (finding a “strong preference for resolving
disputes on the merits”).
A court should deny leave to amend only “in instances of futility, undue delay, bad faith
or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, or
undue prejudice to the nonmoving party.” Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122,
126 (2d Cir. 2008) (per curiam).
“The party opposing the motion for leave to amend has the burden of establishing that an
amendment would be prejudicial.” Fariello v. Campbell, 860 F. Supp. 54, 70 (E.D.N.Y. 1994);
see also Eur. Cmty. v. RJR Nabisco, Inc., 150 F. Supp. 2d 456, 502–03 (E.D.N.Y. 2001); Saxholm
AS v. Dynal, Inc., 938 F. Supp. 120, 123 (E.D.N.Y. 1996). The opposing party likewise bears the
burden of establishing that an amendment would be futile. See Blaskiewicz v. Cty. of Suffolk, 29
F. Supp. 2d 134, 137–38 (E.D.N.Y. 1998) (citing Harrison v. NBD Inc., 990 F. Supp. 179, 185
Proposed amendments are futile when they “would fail to cure prior deficiencies or to state
a claim under Rule 12(b)(6) . . . .” IBEW Local Union No. 58 Pension Trust Fund & Annuity Fund
v. Royal Bank of Scotland Grp., PLC, 783 F.3d 383, 389 (2d Cir. 2015) (quoting Panther Partners
Inc. v. Ikanos Commc'ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012)).
B. The Legal Standard for a Motion to Dismiss
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the
factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of
the Plaintiff. See Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013); Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006); Bold Elec., Inc. v. City of N.Y., 53 F.3d 465, 469 (2d
Cir. 1995); Reed v. Garden City Union Free School Dist., 987 F. Supp. 2d 260, 263 (E.D.N.Y.
Under the now well-established Twombly standard, a complaint should be dismissed only
if it does not contain enough allegations of fact to state a claim for relief that is “plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929
(2007). The Second Circuit has explained that, after Twombly, the Court’s inquiry under Rule
12(b)(6) is guided by two principles:
First, although a court must accept as true all of the allegations contained in a
complaint, that tenet is inapplicable to legal conclusions, and [t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do
not suffice. Second, only a complaint that states a plausible claim for relief survives
a motion to dismiss and [d]etermining whether a complaint states a plausible claim
for relief will . . . be a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664, 129
S. Ct. 1937, 1940, 173 L. Ed. 2d 868 (2009)).
Thus, “[w]hen there are well-pleaded factual allegations, a court should assume their
veracity and . . . determine whether they plausibly give rise to an entitlement of relief.” Iqbal, 556
U.S. at 679.
C. As to the Plaintiff’s Motion to Amend
Although the Defendants filed their motion to dismiss before the Plaintiffs filed their
motion to amend, the Court will first deal with the motion to amend, as it may affect the dismissal
The Defendants argue that the Plaintiff’s motion to amend is made in bad faith, was unduly
delayed; would prejudice the Defendants; would not be in the interests of judicial economy; and
is futile. The Defendants argue that the amendments are futile because they state that Ambulance
Medical Technician Coordinators were not “assigned to Chart Green or Chart 13;” that the
Plaintiffs’ FLSA and NYLL claims are constrained to apply to when they worked supplemental
days, so any mention of extra hours beyond the supplemental days cannot be considered by the
Court; and the wage and hour policies of other departments do not have any bearing on the
Plaintiffs’ claims. Finally, the Defendants state that the Plaintiffs notices of claim were filed late.
In opposition, the Plaintiffs state that they merely wish to correctly state the facts. The Court finds
that the Plaintiffs may properly add all the facts they seek to add except for those concerning the
service of the notices of claim.
1. As to Whether Undue Delay, Prejudice, or Bad Faith is Present
The Defendants claim that the Plaintiffs have engaged in bad faith because they had the
information required to amend the complaint when they filed their initial complaint. Therefore,
they state that the Plaintiffs have unduly delayed filing their amended complaint, and that the
Defendants would be prejudiced by the amendment because it would slow the progress of the case
and discovery would drastically expanded. For their part, the Plaintiffs maintain that it was not
until they viewed the duty charts provided by the Defendants in relation to a separate motion that
they had the information that lead to the amendments. In the Court’s view, the Plaintiffs have not
engaged in bad faith; their amendment is not unduly delayed; and the Defendants will not be
“Mere delay . . . absent a showing of bad faith or undue prejudice, does not provide a basis
for a district court to deny the right to amend.” State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d
843, 856 (2d Cir. 1981); Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 333 (2d
Cir. 2000) (affirming grant of motion to amend after seven-year delay, where defendant did not
show prejudice). “The concepts of delay and undue prejudice are interrelated—the longer the
period of unexplained delay, the less will be required of the non-moving party in terms of showing
prejudice.” Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d Cir. 1983).
Here, the Plaintiffs moved to amend less than four months after they filed their initial
complaint, and less than two months after the Defendants filed their motion to dismiss. The parties
have not even begun discovery, nor have they appeared before this Court or Magistrate Judge
Locke. It is of no moment that the amendment would expand the scope of discovery because
discovery has not yet begun. Also, the Court fails to see how the Defendants are unduly prejudiced.
Certainly, any amendment will change how defendants provide discovery and assert defenses.
However, the standard is “unduly prejudiced,” and the Defendants have fallen far short of
Similarly, the Court finds that the Plaintiff has not engaged in bad faith. The Court accepts
the Plaintiffs’ representation that they did not have the information required for the amendment
until they received the duty charts from the Defendants. In any event, even if the Plaintiffs had
the information when they filed their initial complaint, that fact alone would be insufficient to
demonstrate bad faith.
Accordingly, the Court finds that the Plaintiffs have not engaged in bad faith or undue
delay, and that the Defendants would not be unduly prejudiced by the proposed amendments.
2. As to Whether the Plaintiffs’ Proposed Amendments Are Futile
The Defendants cite to outside evidence in support of their contention that the Plaintiff’s
motion to add factual information about Ambulance Medical Technician Coordinators is futile.
Specifically, they cite to an affidavit from Assistant Chief of the NCPD. While the Court does
consider the two duty charts attached to the Assistant Chief’s declaration, as those were
incorporated by reference to the Plaintiffs’ PAC, the Court does not consider the factual assertions
made in the affidavit.
“When determining the sufficiency of plaintiff[’s] claim for Rule 12(b)(6) purposes,
consideration is limited to the factual allegations in [the] complaint, documents attached to the
complaint as an exhibit or incorporated in it by reference, matters of which judicial notice may be
taken, or documents either in plaintiff[’s] possession or of which plaintiff[ ] had knowledge and
relied in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
Therefore, the Plaintiffs’ motion to add factual information regarding Ambulance Medical
Technician Coordinators’ assignments is granted.
The Court also grants the Plaintiffs’ motion to add factual allegations that they sometimes
worked 40 hour weeks other than when they worked supplemental days, as well as that other
departments have had their overtime incorrectly calculated. The Defendants’ arguments against
these allegations are not that they are futile, but that the Plaintiffs should not be allowed to allege
such facts. The Court disagrees. The Plaintiffs are not constrained to the weeks when they worked
supplemental days. Clearly, by alleging that they worked 48 hour weeks numerous times per year,
they seek to bring causes of action for those weeks. Nor are the Plaintiffs constrained from stating
that the NCPD has mistakenly calculated other employees’ overtimes. The Plaintiffs aver that they
do not seek to expand the scope of possible class members, just to include relevant facts. In the
Court’s view, this is entirely permissible.
As to the Defendants’ arguments related to the Plaintiffs’ motion to add factual information
regarding the service of the notices of claim, the Court will address those contentions below in the
section dealing with the Defendants’ motion to dismiss. The service of the notices of claim sought
to cure a defect identified in the Defendants’ motion to dismiss, and so it is more easily analyzed
in connection with the Defendants’ other arguments about the notices of claim. MB v. Islip Sch.
Dist., No. 14-CV-4670 SJF GRB, 2015 WL 3756875, at *4 (E.D.N.Y. June 16, 2015) (“Because
plaintiffs moved to amend the Amended Complaint while defendants' motion to dismiss was
pending, the Court has ‘a variety of ways in which it may deal with the pending motion to dismiss,
from denying the motion to dismiss as moot to considering the merits of the motion in light of the
amended complaint.’” quoting Schwartzco Enters. LLC v. TMH Mgmt., LLC, No. 14–civ–1082,
2014 WL 6390299, at *1 (E.D.N.Y. Nov. 17, 2014)); Costello v. Town of Huntington, No. 14–
civ–2061, 2015 WL 1396448, at *1 (E.D.N.Y. Mar. 25, 2015) (“the Court will consider the merits
of Defendant's motion [to dismiss] in light of the allegations in the proposed Amended
Therefore, the Plaintiffs’ motion to amend their complaint to add allegations concerning
Ambulance Medical Technician Coordinators’ assignments; numerous weeks where they worked
more than 40 hours which did not always include supplemental days; and the NCPD’s failure to
correctly calculate other department’s overtime is not futile. Accordingly, the Plaintiffs’ motion
to amend their complaint to add those allegations is granted. The Court will address the allegations
concerning the service of the notice of claims below.
D. As to the Defendants’ Motion to Dismiss
The Defendants argue that the Plaintiff’s claims against the NCPD and the NCCSC must
be dismissed because, as administrative arms of the County, they cannot be sued as separate
entities. They further assert that the Plaintiff’s claims relating to mutuals and shift swaps must be
dismissed because the FLSA explicitly states that employers do not have to account for shift trades
when calculating employees’ overtime; that Plaintiffs are not entitled to overtime compensation
for any hours worked between 36 hours and 40 hours; and that the Plaintiffs’ NYLL claims must
be dismissed because they did not serve notice of claims.
In opposition, the Plaintiffs maintain that they are entitled to overtime wages for any hours
worked that exceeded 36 hours; they were not required to file notice of claims because they receive
the benefit of the public exception; and they filed a notice of claim after they filed their complaint.
The Plaintiffs did not respond to the Defendants’ other arguments.
1. As to Whether the NCPD and the NCCSC Can Be Sued as Separate Entities
It is well-established that “under New York law, departments that are merely administrative
arms of a municipality do not have a legal identity separate and apart from the municipality and,
therefore, cannot sue or be sued.” Davis v. Lynbrook Police Dep't, 224 F. Supp. 2d 463, 477
(E.D.N.Y. 2002); see also Rose v. Cty. of Nassau, 904 F. Supp. 2d 244, 247 (E.D.N.Y. 2012)
(dismissing claims against the Nassau County police department because “[t]he Police Department
is an administrative arm of the County of Nassau”); Hall v. City of White Plains,185 F. Supp. 2d
293, 303 (S.D.N.Y. 2002) (“Under New York law, departments which are merely administrative
arms of a municipality, do not have a legal identity separate and apart from the municipality and
cannot sue or be sued.”) (internal citation omitted)). Therefore, the Plaintiff’s claims against the
NCPD and NCCSC must be dismissed. The Defendants’ motion to dismiss the claims against
those entities pursuant to Rule 12(b)(6) is granted.
2. As to the Plaintiffs’ Claims Relating to Mutuals and Shift Swaps
The FLSA has provided for computation of overtime when two employees trade shifts.
Section 7 of the FLSA states:
If an individual who is employed in any capacity by a public agency which
is a State, political subdivision of a State, or an interstate governmental agency,
agrees, with the approval of the public agency and solely at the option of such
individual, to substitute during scheduled work hours for another individual who is
employed by such agency in the same capacity, the hours such employee worked
as a substitute shall be excluded by the public agency in the calculation of the hours
for which the employee is entitled to overtime compensation under this section.
29 U.S.C. § 207(p)(3). The regulations interpreting the FLSA further clarify that:
Section 7(p)(3) of the FLSA provides that two individuals employed in any
occupation by the same public agency may agree, solely at their option and with
the approval of the public agency, to substitute for one another during scheduled
work hours in performance of work in the same capacity. The hours worked shall
be excluded by the employer in the calculation of the hours for which the
substituting employee would otherwise be entitled to overtime compensation under
the Act. Where one employee substitutes for another, each employee will be
credited as if he or she had worked his or her normal work schedule for that shift.
29 C.F.R. § 553.31(a). The rules and regulations for the New York State Department of Labor
state that employers shall follow the manner and methods of the FLSA. N.Y. COMP. CODES R. &
REGS. tit. 12, § 142-2.2.
Therefore, the Plaintiffs’ overtime claims related to their mutual and shift swaps cannot be
maintained. Accordingly, the Defendants’ motion to dismiss those claims pursuant to Rule
12(b)(6) is granted.
3. As to Whether the Plaintiffs Are Entitled to Overtime Wages for Working More
than 36 Hours a Week, as Opposed to 40 Hours
The FLSA provides that:
Except as otherwise provided in this section, no employer shall employ any of his
employees who in any workweek is engaged in commerce or in the production of
goods for commerce, or is employed in an enterprise engaged in commerce or in
the production of goods for commerce, for a workweek longer than forty hours
unless such employee receives compensation for his employment in excess of the
hours above specified at a rate not less than one and one-half times the regular rate
at which he is employed.
29 U.S.C. §207. The rules and regulations for the New York State Department of Labor state that
employers shall follow the manner and methods of FLSA. N.Y. COMP. CODES R. & REGS. tit. 12,
To the extent that the Plaintiffs believe that they are owed overtime because of collective
bargaining agreements, those claims sound in contract. Accordingly, the Plaintiffs’ overtime
FLSA and NYLL claims are limited to when they worked more than forty hours in a week.
4. As to Whether the Plaintiffs Were Required to File Notices of Claims
The Defendants assert that the Plaintiffs were required to file notices of claims, pursuant
to New York County Law §52, and that their failure to file the notices requires dismissal of the
Plaintiffs’ NYLL claims. The Plaintiffs respond that their suit was filed in the public interest, and
they are therefore exempted from the requirement; and that even if they are required to file such
notices, they have been filed in a timely manner because the Defendants have continued their
alleged wrongful acts. As to this issue, the Court finds that the Plaintiffs had to file notices of
claim because they do not qualify for the public exception here, and that their filing of the notices
of claim was late.
New York County Law § 52 requires the filing of a notice of claim for claims
against a county for damage, injury or death, or for invasion of personal or property
rights, of every name and nature . . . and any other claim for damages arising at law
or in equity, alleged to have been caused or sustained in whole or in part 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 . . . .
N.Y. COUNTY LAW § 52; see also Feldman v. Nassau County, 349 F. Supp. 2d 528, 539 (E.D.N.Y.
2004); Keating v. Gaffney, 182 F. Supp. 2d 278, 291 (E.D.N.Y. 2001). Section 52 of the County
Law incorporates New York General Municipal Law §§ 50-e and 50-i (“Section 50-e” and
“Section 50-i”). Section 50-e requires that, as a condition precedent to filing a suit where a notice
is required, a notice of claim must be filed within ninety days of the incident giving rise to the
claim. N.Y. GEN. MUN. LAW 50-e. Pursuant to Section 50-i, a plaintiff must allege in the
complaint that “(1) the notice of claim was served; (2) at least thirty days has elapsed since the
notice of claim was filed and before the complaint was filed; and (3) in that time the defendant has
neglected to or refused to adjust or to satisfy the claim.” Henneberger v. Cty. of Nassau, 465 F.
Supp. 2d 176, 198 (E.D.N.Y. 2006)
“Notice of claim requirements are construed strictly by New York state courts. Failure to
comply with these requirements ordinarily requires a dismissal for failure to state a cause of
action.” Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793–94 (2d Cir. 1999) (internal
quotations and citations omitted); see also Horvath v. Daniel, 423 F. Supp. 2d 421, 423 (S.D.N.Y.
2006) (“Absent a showing of such a Notice of Claim, the complaint may be dismissed for failure
to state a cause of action.” (internal citation and quotation marks omitted)).
A plaintiff who seeks to vindicate a public interest is exempt from the notice requirement.
However, the Plaintiffs do not qualify for the exemption. Mills v. Monroe Cty., 59 N.Y.2d 307,
308, 451 N.E.2d 456, 456 (N.Y. 1983) (“[F]ailure to timely file a notice of claim shall be fatal
unless the action has been brought to vindicate a public interest or leave to serve late notice has
been granted by the court.”). This is a private lawsuit for money damages where the Plaintiffs
allege that the Defendants are responsible to them. Therefore, this suit does not seek to vindicate
a public interest. See id. at 311 (stating that an action seeks to vindicate a public interest if it was
“brought to protect an important right, and seek[s] relief for a similarly situated class of the public,
and whose resolution would directly affect the rights of that class or group.” (emphasis added));
see also Henneberger, 465 F. Supp. 2d at 198 (holding that a private civil rights was not brought
in the public interest); Feldman, 349 F. Supp. 2d at 539 (finding that an employment discrimination
claim that “seeks enforcement of [plaintiff's] private interests” is not in the public interest); Atkins
v. Cty. of Orange, 251 F. Supp. 2d 1225, 1235 (S.D.N.Y. 2003) (“[T]he public interest exception
[to the notice of claim requirement] does not apply when plaintiffs are seeking money damages
for the sole purpose of redressing plaintiffs’ individual injuries.”); id. (finding that, while
plaintiffs’ recovery might have an effect on others' interests, “we do not think such an effect would
be of any greater value to the public than any other award to civil rights plaintiffs”); Flynn v. N.Y.
City Bd. of Educ., No. 00 Civ. 3775(LAP), 2002 WL 31175229, at *9–*10 (S.D.N.Y. Sept.30,
2002) (same) (New York Labor Law claim).
In this case, the public will not be affected by the outcome; only Suffolk County employees
will be affected. The fact that it is a putative class action does not change that concept. Therefore,
the Plaintiffs were required to file notices of claim.
The Plaintiffs filed their notices of claim after they brought this action. The Defendants
maintain that the filing was late because it occurred after this suit was initiated.
As the filing of a notice of claim is a condition precedent to bringing a suit against a county,
it necessarily follows that filing a notice of claim after initiating such a suit is late, by its very
nature. Therefore, filing a notice of claim after initiating a suit is not timely. See generally,
Pierson v. City of N.Y., 56 N.Y.2d 950, 954, 439 N.E.2d 331, 332 (N.Y. 1982) (stating that “[t]he
1976 amendments to section 50–e of the General Municipal Law permit a court to grant an
application to file a late notice of claim after the commencement of the action . . . .” and therefore
implying that any notices of claim filed after the commencement of an action are late (italics
Pursuant to Section 50-e, the filing a notice of claim is a condition precedent to
commencing a suit. While plaintiffs are permitted to apply to file late notices of claims, federal
courts do not have jurisdiction to grant such requests.
Morgan v. Nassau Cty., No.
03CV5109SLTWDW, 2009 WL 2882823, at *15 (E.D.N.Y. Sept. 2, 2009) (“The late service of
the notice of claim was thus a nullity and this Court is not at liberty to cure this defect.”);
Henneberger, 465 F. Supp. 2d at 200 (“This Court abides by the overwhelming weight of authority
among district courts in the Second Circuit and finds that [N.Y. GEN. MUN. LAW] 50–e(7) permits
only certain state courts—‘the supreme court or . . . the county court’ in certain counties—to
consider and to grant an application for an extension of time.” (quoting N.Y. GEN. MUN. LAW 50–
e(7))); Horvath, 423 F. Supp. 2d at 424.
This court is without jurisdiction to decide whether the Plaintiffs’ late notice was sufficient.
Accordingly, because the Plaintiffs failed to serve the notices of claim in a timely manner, their
motion to amend their complaint to add facts regarding their service of the notices of claim is
denied without prejudice; and their NYLL claims are dismissed without prejudice. The Plaintiffs
may refile these claims after a state court with jurisdiction to decide the matter holds that the
Plaintiffs properly filed late notices of claim.
Accordingly, the Plaintiffs’ motion to amend is granted in part and denied in part. The
Defendants’ partial motion to dismiss is granted in its entirety.
The Plaintiffs’ motion to amend is granted to the extent that they may add the facts
regarding Ambulance Medical Technician Coordinators on Duty Chart 7; that Plaintiffs worked
48-hour weeks numerous times per year; and that other departments’ overtime rates are not
calculated correctly. The Plaintiffs’ motion to amend is denied without prejudice to the extent that
they seek to add facts concerning their service of notices of claim on the Defendants. As discussed
above, because the notices were filed late, that amendment would be futile.
The Plaintiffs claims’ against the NCPD and the NCCSC are dismissed, and the Clerk of
the Court is respectfully directed to terminate them as parties. The Plaintiffs’ overtime claims will
be limited to those weeks where they worked more than 40 hours, not owing to a mutual or shift
swap. The Plaintiffs’ NYLL claims are dismissed without prejudice with leave to refile upon
obtaining an order from a New York State court of competent jurisdiction stating that the late
notices of claim were proper.
At this time, only the Plaintiffs’ FLSA overtime claims remain against Nassau County, for
those weeks when they worked more than 40 hours not due to mutual or shift swaps.
The Plaintiffs are directed to notify this Court within fourteen days of the entry of this order
whether they intend to obtain relief as to their NYLL claims in the New York State courts. In the
event that the Plaintiffs express their intent to seek such relief, the matter will be stayed for a
reasonable period of time pending the decision of the state court.
It is SO ORDERED:
Dated: Central Islip, New York
August 9, 2017
_______/s/ Arthur D. Spatt________
ARTHUR D. SPATT
United States District Judge
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