The Court of Appeals, in a full-fledged opinion by Judge Lippman, with concurring and concurring/dissenting opinions, determined that summary judgment should not have been granted to white firefighters who sued the city alleging the promotion eligibility lists were improperly allowed to expire resulting in reverse, disparate treatment racial discrimination. The court first held that the notice of claim requirement for actions against a municipality (General Municipal Law 50-i) does not apply to actions brought under the Human Rights Law. The court went on to hold that questions of fact about the city’s motivation for allowing the promotion eligibility lists to expire precluded summary judgment:
…[W]e reject the City’s argument for dismissal on the basis of plaintiffs’ failure to file a notice of claim prior to commencement of this action. General Municipal Law § 50-e (1) (a) requires service of a notice of claim within 90 days after the claim arises “[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation.” General Municipal Law § 50-i (1) precludes commencement of an action against a city “for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city,” unless a notice of claim has been served in compliance with section 50-e. The Appellate Division departments addressing the issue have determined that the General Municipal Law does not encompass a cause of action based on the Human Rights Law and “[s]ervice of a notice of claim is therefore not a condition precedent to commencement of an action based on the Human Rights Law in a jurisdiction where General Municipal Law §§ 50-e and 50-i provide the only notice of claim criteria” … . Human rights claims are not tort actions under 50-e and are not personal injury, wrongful death, or damage to personal property claims under 50-i. Nor do we perceive any reason to encumber the filing of discrimination claims. Accordingly, we conclude that there is no notice of claim requirement here. * * *
In this case, the issue of liability turns on the factual circumstances behind the City’s actions, the strength of its justifications and its motivations. It is undisputed that the plaintiffs here made out a prima facie case of discrimination, as the City chose not to promote white candidates from the eligibility list. The burden then shifted to the City to prove that it had “a strong basis in evidence to justify its race conscious action” … . * * *
Based on the record before us, we conclude that whether the City had “a strong basis in evidence to believe it [would] be subject to disparate-impact liability” at the time that it terminated the promotion eligibility lists … raises issues of fact that cannot be determined on motions for summary judgment. Margerum v City of Buffalo, 2015 NY Slip Op 01378, CtApp 2-17-15