The principal issue on appeal in this contract action is whether the failure to present a claim to the Board of Education pursuant to section 3813 of the Education Law necessarily bars an action against it, where the notice has instead been served upon an officer of one of the bureaus operating under the supervision of the Board.
This action was brought by plaintiff Parochial Bus Systems, Inc. ("Parochial"), to recover amounts allegedly owed to it under a contract with defendant Board of Education of the City of New York (the Board) whereby Parochial was to provide transportation for school children. During the period from February 16, 1979 through May 10, 1979, the members of two unions unaffiliated with the employees of Parochial engaged in a wildcat strike against the Board, and Parochial did not provide transportation at any time therein. Parochial commenced this action on November 8, 1979, claiming entitlement to full compensation under the contractual provisions, and alleging that it was at all times prepared to provide transportation services but was unable safely to do so because of the violence incident to the wildcat strike.
On April 16, 1980, plaintiff Local 100, whose members were employees of Parochial, was granted permission to intervene and, shortly thereafter, served its complaint upon the Board seeking wages owed its members out of the compensation unpaid to Parochial. Previously, Local 100 had won an arbitration award against Parochial for the payment of wages to its member-employees for the period of the wildcat strike. The arbitrator, however, stayed the enforcement of that award pending the satisfaction of the Board's alleged obligation to Parochial.
The Board moved at Supreme Court for summary judgment on the ground that Parochial had failed to satisfy the
We are presented with a threshold issue: whether the Board may now obtain review of the adverse ruling below which upheld Parochial's notice of claim, even though the Board failed to cross-appeal from that ruling. Stated in other words, may the successful party which has received all of the relief it sought below be permitted, on an appeal brought by the losing party, to challenge an adverse determination from which it has not cross-appealed? It has been noted by the commentators that this question has received "scant attention" and, indeed, we have had little opportunity to clarify the matter. (7 Weinstein-Korn-Miller, NY Civ Prac, par 5511.06, p 55-74; Cohen and Karger, Powers of the New York Court of Appeals, § 91, pp 394-395.)
Generally, the party who has successfully obtained a judgment or order in his favor is not aggrieved by it, and, consequently, has no need and, in fact, no right to appeal. (CPLR 5511; 10 Carmody-Wait 2d, NY Prac, § 70:54; Siegel, NY Prac, § 525; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5511.05.) The major exception to this general rule, however, is that the successful party may appeal or cross-appeal from a judgment or order in his favor if he is nevertheless prejudiced because it does not grant him
The question remaining in such cases, however, is whether the successful nonaggrieved party, thus barred from bringing an appeal or cross appeal, may nonetheless seek review of an adverse holding rendered below, on the appeal from the final judgment or order brought by the losing party. Whatever may have been the confusion existing under section 580 of the old Civil Practice Act (repealed Sept. 1, 1963), the provisions of CPLR 5501 (subd [a], par 1) permit a broad scope of review of any such determinations that were "adverse to the respondent", as long as the final judgment or order has been properly appealed by the appellant. (10 Carmody-Wait 2d, NY Prac, § 70:337; Siegel, NY Prac, § 530, pp 736-737; 7 Weinstein-Korn-Miller, NY Civ Prac, pars 5501.04, 5511.06.) An appeal from a final judgment or order brings up for review any determination of the court below "which was adverse to the respondent" and which "if reversed, would entitle the respondent to prevail in whole or in part on [the] appeal". (CPLR 5501, subd [a], par 1.) This rule permits a respondent to obtain review of a determination incorrectly rendered below where, otherwise, he might suffer a reversal of the final judgment or order upon some other ground. Hence, the
Here, where the Board was the successful party below, obtaining all the relief it sought, to wit: summary judgment in its favor and dismissal of the complaints, it was not aggrieved by the incidental adverse determination which upheld the sufficiency of plaintiffs' notice of claim. Consequently, there was no need for the Board to appeal from that incidental holding. However, because a reversal of that incidental determination would entitle the Board to prevail on this appeal, in the event Parochial was successful on the other issue in this case, the Board has the right to assert error and raise the incidental issue for our review. The Board having done so, the issue of the sufficiency of Parochial's notice of claim is properly before us, and to that we now turn.
The contested notice of claim consisted of the letter written by Parochial's vice-president, dated July 26, 1979, including the invoices for the disputed period as enclosures, which was sent to the Director of the Board's Bureau of Pupil Transportation. The letter requested payment in the amount of the enclosed invoices, quoted the specific provision of the contract between Parochial and the Board upon which Parochial's claim is predicated, and explained the then pending arbitration proceeding in which the member-employees of Local 100 were seeking wages and benefits for the period in question. The letter was apparently forwarded to the Board's central office in Brooklyn, New York, whereupon the Board's Office of Legal Services acknowledged receipt in a letter dated August 28, 1979, denying Parochial's claim. The preparation, delivery, receipt
As we have stated on previous occasions, "the purpose of section 3813 of the Education Law is to give a school district prompt notice of claims `so that investigation may be made before it is too late for investigation to be efficient'." (Matter of Board of Educ. [Wager Constr. Corp.], 37 N.Y.2d 283, 289; cf. Winbush v City of Mount Vernon, 306 N.Y. 327, 333.) The essential elements to be included in the notice are the nature of the claim, the time when, the place where and the manner in which the claim arose (Widger v Central School Dist. No. 1, 18 N.Y.2d 646, 648) and, where an action in contract is involved, the monetary demand and some explanation of its computation. (P. J. Panzeca, Inc. v Board of Educ., 29 N.Y.2d 508, 509.) Satisfaction of these requirements is a condition precedent to bringing an action against a school district or a board of education (Matter of Board of Educ. [Wager Constr. Corp.], supra, at p 289; Matter of Board of Educ. [Heckler Elec. Co.], 7 N.Y.2d 476, 482) and, moreover, failure to present a claim within the statutory time limitation (Pugh v Board of Educ., 30 N.Y.2d 968; Walker & Co. v Board of Educ., 44 N.Y.2d 918) or to notify the correct party (Matter of Geneseo Cent. School [Perfetto & Whalen Constr. Corp.], 53 N.Y.2d 306, 311; Bayer v Board of Educ., 58 Misc.2d 259, 260 [MEYER, J.]), is a fatal defect.
Although we have previously held that, where the school district has been "sufficiently informed" of the claim (Widger v Central School Dist. No. 1, supra, at p 648), "all that is required is substantial compliance with the statute" regarding the degree of descriptive detail in a notice of claim (Matter of Baker [Board of Educ.], 309 N.Y. 551, 557), we have, nevertheless, always insisted that statutory requirements mandating notification to the proper public body or official must be fulfilled. (Chesney v Board of Educ., 5 N.Y.2d 1007;
Nor may a claimant be relieved of "a positive statutory mandate" simply because no prejudice has resulted, "even to avoid a harsh result." (P. J. Panzeca, Inc. v Board of Educ., 29 N.Y.2d 508, 510, supra; cf. Matter of Lloyd [MVAIC], 23 N.Y.2d 478, 481.)
Accordingly, Parochial's failure to present its notice of claim "to the governing body of [the] district or school", here the defendant Board, as required by the clear language of subdivision 1 of section 3813 of the Education Law, is a fatal defect mandating dismissal of this action.
The statutory prerequisite is not satisfied by presentment to any other individual or body, and, moreover, the statute permits no exception regardless of whether the Board had actual knowledge of the claim or failed to demonstrate actual prejudice. The statute "must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if
For this reason, the order of the Appellate Division should be affirmed.
Order affirmed, with costs.