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Criteria for Taxpayer Lawsuit Against School District for Misuse of Public Property Not Met; Failure to Serve Notice of Claim Fatal

In reversing Supreme Court, the Second Department determined that the failure to serve a notice of claim upon the school district (in a tort action) required dismissal and the criteria for a taxpayer suit against the district under General Municipal Law 51 had not been met:

Pursuant to Education Law § 3813, a plaintiff commencing a tort action against a school district must serve a notice of claim upon the school district. “Service of a notice of claim is a condition precedent to bringing an action against a school district or a board of education'”… . * * *

“A taxpayer suit under General Municipal Law § 51 lies only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes'” … .. Further, to establish “common-law taxpayer standing,” a plaintiff must demonstrate that he or she is “personally aggrieved by those actions in a manner different in kind and degree from the community generally” and that “the failure to accord [him or her] standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action”… . Fauvell v Miglino, 2013 NY Slip Op 07150, 2nd Dept 11-6-13

 

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