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FILED: CHAUTAUQUA COUNTY CLERK 02/21/2023 05:08 PM INDEX NO. EK12022001278
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/21/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF CHAUTAUQUA
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In The Matter of a Proceeding for
Age Discrimination under the Education Law
Index No.: EK12022001278
THOMAS D. ZOFCHAK,
Petitioner,
VERIFIED ANSWER
- against -
FALCONER CENTRAL SCHOOL DISTRICT and
SCOTT PETERSON,
Respondents.
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Respondents, sued herein as, FALCONER CENTRAL SCHOOL DISTRICT and SCOTT
PETERSON (hereinafter collectively, “Respondents” or “District”), by and through their
attorneys, Harris Beach PLLC, as and for their Verified Answer to the Verified Petition
(“Petition”) of Petitioner THOMAS D. ZOFCHAK (“Petitioner”), specifically allege as follows:
1. The allegations in paragraph “1” of the Petition constitute legal conclusions to
which no response is required, and Respondents refer to the Court all conclusions of law. To the
extent a response is deemed required, Respondents deny knowledge or information sufficient to
form a belief as to the truth of the allegations contained in paragraph “1” of the Petition.
2. With regard to the allegations in paragraph “2” of the Petition, admit that Petitioner
was employed as a school bus driver by the District prior to his termination effective April 14,
2022, and deny knowledge or information sufficient to form a belief as to the truth of the remaining
allegations contained in that paragraph.
3. Admit the allegations contained in paragraph “3” of the Petition.
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4. With regard to the allegations in paragraph “4” of the Petition, admit that
Respondent Scott Peterson was the Petitioner’s direct supervisor and deny the remaining
allegations contained in that paragraph.
5. The allegations in paragraph “5” of the Petition constitute legal conclusions to
which no response is required, and Respondent refers to the Court all conclusions of law. To the
extent a response is deemed required, Respondents admit that Falconer Central School District is
located in Chautauqua County and that venue in Chautauqua County is proper.
6. Admit the allegations contained in paragraph “6” of the Petition.
7. Admit the allegations contained in paragraph “7” of the Petition.
8. With regard to the allegations in paragraph “8” of the Petition, admit only so much
of the allegations that, on February 9, 2021, Petitioner passed his physical performance test
required for all bus drivers in New York State under the regulations established by the
Commissioner of Education (8 NYCRR § 156.3[b][3][iii]), and that the document attached to the
Petition as Exhibit A is the results of that test, but deny the remaining allegations in that paragraph.
Respondents specifically state that, on February 4, 2021, Petitioner failed the physical examination
established by the Commissioners of Education and Motor Vehicles, also required for bus drivers
in New York State (see 15 NYCRR §§ 6.3[c][3], 6.10).
9. Deny the allegations contained in paragraph “9” of the Petition.
10. Deny the allegations contained in paragraph “10” of the Petition.
11. Deny the allegations contained in paragraph “11” of the Petition.
12. With regard to the allegations in paragraph “12” of the Petition, admit that the
District terminated Mr. Zofchak’s employment effective April 14, 2022 and that the document
attached to the Petition as Exhibit B is a letter dated March 30, 2022 from the District to Petitioner
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advising Petitioner that his employment with the District would be terminated pursuant to Civil
Service Law § 73 effective April 14, 2022, deny knowledge and information sufficient to form a
belief as to the truth of the remaining allegations contained in that paragraph, and refer to the Court
all issues concerning the terms, meaning, and legal effect of the document referenced in said
paragraph.
(FIRST CAUSE OF ACTION)
13. With regard to the allegations in paragraph “13” of the Petition, Respondents
reincorporate and reallege their responses herein.
14. The allegations in paragraph “14” of the Petition constitute legal conclusions to
which no response is required, and Respondents refer to the Court all conclusions of law. To the
extent a response is deemed required, Respondents deny the allegations contained in paragraph
“14” of the Petition.
15. The allegations in paragraph “15” of the Petition constitute legal conclusions to
which no response is required, and Respondent refers to the Court all conclusions of law. To the
extent a response is deemed required, Respondents deny the allegations contained in paragraph
“15” of the Petition.
16. The allegations in paragraph “16” of the Petition constitute legal conclusions to
which no response is required, and Respondent refers to the Court all conclusions of law. To the
extent a response is deemed required, Respondents deny the allegations contained in paragraph
“16” of the Petition.
17. Deny the allegations contained in paragraph “17” of the Petition.
18. Deny the allegations contained in paragraph “18” of the Petition.
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19. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph “19” of the Petition.
20. With regard to the allegations in paragraph “20” of the Petition, admit that Scott
Peterson is still employed by the District but deny the remaining allegations contained in that
paragraph.
21. With regard to the allegations in paragraph “21” of the Petition, admit that the
Village of Falconer is within the territory of the District but deny the remaining allegations
contained in that paragraph.
22. Deny the allegations contained in paragraph “22” of the Petition.
23. With regard to the allegations in paragraph “23” of the Petition, admit so much of
the allegations as allege that Respondents were aware Petitioner had been terminated from his
position within ninety (90) days of his termination, but deny the remaining allegations contained
in that paragraph, and specifically state that the reason for Petitioner’s termination was due to his
failure to meet the State requirements for bus drivers for in excess of one year.
24. With regard to the allegations in paragraph “24” of the Petition, deny knowledge or
information sufficient to form a belief as to the truth of the allegation that Petitioner “remain[s]
available for deposition[],” admit that Respondent Scott Peterson is still employed by the District,
and deny the remaining allegations in that paragraph, including that the Respondent District is
“available” for a deposition insofar the District is not a person able to give testimony.
25. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph “25” of the Petition.
26. Deny the allegations contained in paragraph “26” of the Petition.
27. Deny the allegations contained in paragraph “27” of the Petition.
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28. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph “28” of the Petition.
29. The allegations in paragraph “29” of the Petition (incorrectly numbered as a
duplicate “27”) constitute legal conclusions to which no response is required, and Respondent
refers to the Court all conclusions of law. To the extent a response is deemed required,
Respondents deny the allegations contained in paragraph “29” of the Petition.
30. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph “30” (incorrectly numbered as a duplicate “28”) of the Petition.
GENERAL DENIAL
31. Deny each and every other allegation of the Petition not heretofore previously
admitted, denied or otherwise controverted.
FIRST AFFIRMATIVE DEFENSE
AND OBJECTION IN POINT OF LAW
32. The Petition fails to state a cause of action for which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
AND OBJECTION IN POINT OF LAW
33. The request for an Order permitting the Petitioner to serve a late Notice of Claim
must be denied as the proposed claim for alleged age discrimination time-barred under N.Y.
Education Law § 3813(2-b).
34. A court’s discretionary extension of time for service of notice of claim beyond the
90-day deadline under Education Law § 3813(2-a) “shall not exceed the time limited for the
commencement of an action by the claimant against [the] district” (Educ. Law § 3813[2-a]). Stated
differently, “if the applicable statute of limitations has expired, the court lacks jurisdiction to grant
an extension” (Bucalo v E. Hampton Union Free Sch. Dist., 351 F Supp 2d 33, 35 [EDNY 2005]).
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35. The deadline for commencement of an action by Petitioner for alleged
discrimination is “one year after the cause of action arose” (Educ. Law § 3813[2-b] [emphasis
added]; see Matter of Amorosi v S. Colonie Ind. Cent. Sch. Dist., 9 NY3d 367, 369 [2007] [holding
that “the clear and unambiguous language of Education Law § 3813 (2-b) provides that the statute
of limitations on . . . a claim [for workplace discrimination against a school district] is one year.”]).
36. Petitioner alleges that, “[b]eginning approximately two years ago [he] experienced
differential treatment by his administration due to his age” when he was allegedly directed “to
undertake extra physical examinations” and was prevented from performing his duties (Petition
[Dkt. No. 1], ¶¶ 8-10 [emphasis added]).
37. Because the proposed claim arose more than one (1) year before the filing of the
instant Petition and is accordingly time-barred, this Court lacks jurisdiction to grant Petitioner
leave to file a late Notice of Claim under Education Law § 3813(2-a), and the Petition should
accordingly be dismissed in its entirety on this basis.
THIRD AFFIRMATIVE DEFENSE
AND OBJECTION IN POINT OF LAW
38. In the alternative, the request for an Order permitting the Petitioner to serve a late
Notice of Claim must be denied because the proposed claim is patently lacking merit.
39. Petitioner’s proposed claim for age discrimination is based on his assertion that he
was “ready, willing, and able” (Petition [Dkt. No. 1], ¶ 8) to perform his duties as bus driver during
the relevant period. Petitioner’s assertion is demonstrably false.
40. On February 4, 2021, Petitioner failed the medical examination established by the
Commissioners of Education and Motor Vehicles required for bus drivers in New York State (see
15 NYCRR §§ 6.3[c][3], 6.10). A true and correct copy of Petitioner’s “Medical Examination
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Report of Driver Under Article 19-A” executed on February 4, 2021 by Jill Muntz, Nurse
Practitioner (herein the “Medical Examination Report”) is attached as Exhibit 1.
41. Specifically, Petitioner was deemed “NOT physically or medically qualified”
pursuant to the governing regulations due to his shortness of breath at rest, heart murmur and
diminished breath sounds (see Exh. 1, p. 2).
42. By correspondence dated April 15, 2021, the District enclosed a copy of
Petitioner’s Medical Examination Report and advised him that he was not medically cleared to
drive until he received a clearance letter from his primary care physician (PCP) with regard to the
issues observed during his February 4, 2021 medical examination. A true and correct copy of the
District’s correspondence dated April 15, 2021 is attached as Exhibit 2.
43. Upon information and belief, on or about May 17, 2021, Petitioner advised
Roxanne Brazie, a registered nurse employed by the District, that he still needed to be seen by his
cardiologist (an appointment for which was scheduled for July 19, 2021) before he could receive
clearance from his PCP.
44. As of March 30, 2022, Petitioner still had not provided the District with a clearance
letter from his PCP.
45. Accordingly, pursuant to correspondence dated March 30, 2022, the District
advised Petitioner that his employment with the District would be terminated effective April 14,
2022, pursuant to Civil Service Law § 73, unless he could demonstrate that either (1) he had not
been continuously absent from work for more than one year; or (2) that he is cleared to return to
work (see N.Y. Civil Service Law § 73 [providing in pertinent part that an employer may terminate
an employee who has been continuously absent from the duties of his position for one year or more
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by reason of a non-occupational disability]). A true and correct copy of the District’s
correspondence dated March 30, 2022 is attached as Exhibit 3.
46. The District did not receive any response from Petitioner to the District’s March
30, 2022 correspondence.
47. Accordingly, Petitioner’s termination became effective as of April 14, 2022.
48. Insofar as Petitioner was not qualified for the position of bus driver under the
applicable State requirements, and, in fact, was absent from his duties as a bus driver due to his
non-occupational disability for a full year, Petitioner’s proposed claim for age discrimination is
patently lacking merit and his request to file a late notice of claim should accordingly be denied
on this alternative basis.
FOURTH AFFIRMATIVE DEFENSE
AND OBJECTION IN POINT OF LAW
49. In the alternative, the request for an Order permitting the Petitioner to serve a late
Notice of Claim must be denied because the remaining relevant facts and circumstances to be
considered by the Court pursuant to Education Law § 3813(2-a) all weigh against the granting of
such relief.
50. First, Petitioner has no reasonable excuse for failing to timely serve a Notice of
Claim, as the law is settled that his alleged ignorance of the law (see Petition [Dkt. No. 1], ¶ 19)
does not constitute a reasonable excuse for the delay (Matter of Murnane v N.Y. City Sch. Constr.
Auth., 164 AD3d 506, 507 [2d Dept 2018]; Le Mieux v Alden High Sch., 1 AD3d 995, 996 [4th
Dept 2003]).
51. Second, Petitioner has not established that Respondents had actual knowledge of
the facts giving rise to the proposed claim within ninety (90) days thereof or a reasonable time
thereafter. The District’s knowledge that Petitioner was out on disability for one year due to his
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failure to meet the State requirements for bus drivers, and/or that Petitioner was subsequently
terminated as a result of this period of disability, does not constitute knowledge of Petitioner’s
proposed claim that he was subjected to discrimination due to his age.
52. Insofar as the proposed claim patently lacks merit, the Petitioner has failed to offer
a legally acceptable excuse for the delay, and he has further failed to establish that Respondent’s
had actual knowledge of his proposed discrimination claim within ninety (90) days, the Petition
should be dismissed without further inquiry (see Matter of Candino v Starpoint Cent. Sch. Dist.,
115 AD3d 1170, 1171 [4th Dept 2014]).
53. Nonetheless, Petitioner has also failed to establish that Respondents are not
prejudiced as a result of the delay. To the contrary, Respondents have been deprived of the ability
to investigate the allegations of age discrimination which Petitioner alleges date back “two years”
(Petition [Dkt. No. 1], ¶ 8) before he filed the instant Petition.
54. Although Respondent Peterson is still employed by the District and thus is
technically “available” to be deposed, his physical “availability” ignores that years have passed
since the date Petitioner alleges he first experienced “differential treatment” by Mr. Peterson,
allowing his memories to fade in the interim.
55. Furthermore, the medical examination that resulted in Petitioner being relieved
from his bus driver duties occurred over two years ago (on February 4, 2021) and it was performed
by a nurse practitioner (Jill Muntz) who is not an employee of the district.
56. Not only is it currently unknown whether Ms. Muntz is available to give testimony
in this matter, but the ability of Ms. Muntz to recall the details of the medical examination is, upon
information and belief, less now than it would have been ninety (90) days – or even within a year
– after the examination.
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57. These factors demonstrate that the District’s ability to defend Petitioner’s proposed
claim on the merits has been prejudiced by the Petitioner’s delays, further warranting this Court’s
denial of Petitioner’s request for leave to serve a late notice of claim.
WHEREFORE, Respondents respectfully request that the Court enter an Order denying
the Petition in its entirety, together with reasonable costs and disbursements of this action, and for
such other and further relief that this Court deems just and proper.
Dated: February 17, 2023
Buffalo, New York
HARRIS BEACH PLLC
By: Allison B. Fiut, Esq.
Attorneys for Respondents
726 Exchange Street, Suite 1000
Buffalo, New York 14210
(716) 200-5050
afiut@harrisbeach.com
TO: R. Thomas Rankin, Esq.
Attorneys for Petitioner
mailto:bknauth@lotempiopc.com617 Washington Street
Jamestown, New York 14701
(716) 397-9193
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Preview
FILED: CHAUTAUQUA COUNTY CLERK 02/21/2023 05:08 PM INDEX NO. EK12022001278 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/21/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CHAUTAUQUA ---------------------------------------------------------------------------X In The Matter of a Proceeding for Age Discrimination under the Education Law Index No.: EK12022001278 THOMAS D. ZOFCHAK, Petitioner, VERIFIED ANSWER - against - FALCONER CENTRAL SCHOOL DISTRICT and SCOTT PETERSON, Respondents. ---------------------------------------------------------------------------X Respondents, sued herein as, FALCONER CENTRAL SCHOOL DISTRICT and SCOTT PETERSON (hereinafter collectively, “Respondents” or “District”), by and through their attorneys, Harris Beach PLLC, as and for their Verified Answer to the Verified Petition (“Petition”) of Petitioner THOMAS D. ZOFCHAK (“Petitioner”), specifically allege as follows: 1. The allegations in paragraph “1” of the Petition constitute legal conclusions to which no response is required, and Respondents refer to the Court all conclusions of law. To the extent a response is deemed required, Respondents deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph “1” of the Petition. 2. With regard to the allegations in paragraph “2” of the Petition, admit that Petitioner was employed as a school bus driver by the District prior to his termination effective April 14, 2022, and deny knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in that paragraph. 3. Admit the allegations contained in paragraph “3” of the Petition. 1 of 11 FILED: CHAUTAUQUA COUNTY CLERK 02/21/2023 05:08 PM INDEX NO. EK12022001278 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/21/2023 4. With regard to the allegations in paragraph “4” of the Petition, admit that Respondent Scott Peterson was the Petitioner’s direct supervisor and deny the remaining allegations contained in that paragraph. 5. The allegations in paragraph “5” of the Petition constitute legal conclusions to which no response is required, and Respondent refers to the Court all conclusions of law. To the extent a response is deemed required, Respondents admit that Falconer Central School District is located in Chautauqua County and that venue in Chautauqua County is proper. 6. Admit the allegations contained in paragraph “6” of the Petition. 7. Admit the allegations contained in paragraph “7” of the Petition. 8. With regard to the allegations in paragraph “8” of the Petition, admit only so much of the allegations that, on February 9, 2021, Petitioner passed his physical performance test required for all bus drivers in New York State under the regulations established by the Commissioner of Education (8 NYCRR § 156.3[b][3][iii]), and that the document attached to the Petition as Exhibit A is the results of that test, but deny the remaining allegations in that paragraph. Respondents specifically state that, on February 4, 2021, Petitioner failed the physical examination established by the Commissioners of Education and Motor Vehicles, also required for bus drivers in New York State (see 15 NYCRR §§ 6.3[c][3], 6.10). 9. Deny the allegations contained in paragraph “9” of the Petition. 10. Deny the allegations contained in paragraph “10” of the Petition. 11. Deny the allegations contained in paragraph “11” of the Petition. 12. With regard to the allegations in paragraph “12” of the Petition, admit that the District terminated Mr. Zofchak’s employment effective April 14, 2022 and that the document attached to the Petition as Exhibit B is a letter dated March 30, 2022 from the District to Petitioner 2 of 11 FILED: CHAUTAUQUA COUNTY CLERK 02/21/2023 05:08 PM INDEX NO. EK12022001278 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/21/2023 advising Petitioner that his employment with the District would be terminated pursuant to Civil Service Law § 73 effective April 14, 2022, deny knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in that paragraph, and refer to the Court all issues concerning the terms, meaning, and legal effect of the document referenced in said paragraph. (FIRST CAUSE OF ACTION) 13. With regard to the allegations in paragraph “13” of the Petition, Respondents reincorporate and reallege their responses herein. 14. The allegations in paragraph “14” of the Petition constitute legal conclusions to which no response is required, and Respondents refer to the Court all conclusions of law. To the extent a response is deemed required, Respondents deny the allegations contained in paragraph “14” of the Petition. 15. The allegations in paragraph “15” of the Petition constitute legal conclusions to which no response is required, and Respondent refers to the Court all conclusions of law. To the extent a response is deemed required, Respondents deny the allegations contained in paragraph “15” of the Petition. 16. The allegations in paragraph “16” of the Petition constitute legal conclusions to which no response is required, and Respondent refers to the Court all conclusions of law. To the extent a response is deemed required, Respondents deny the allegations contained in paragraph “16” of the Petition. 17. Deny the allegations contained in paragraph “17” of the Petition. 18. Deny the allegations contained in paragraph “18” of the Petition. 3 of 11 FILED: CHAUTAUQUA COUNTY CLERK 02/21/2023 05:08 PM INDEX NO. EK12022001278 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/21/2023 19. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph “19” of the Petition. 20. With regard to the allegations in paragraph “20” of the Petition, admit that Scott Peterson is still employed by the District but deny the remaining allegations contained in that paragraph. 21. With regard to the allegations in paragraph “21” of the Petition, admit that the Village of Falconer is within the territory of the District but deny the remaining allegations contained in that paragraph. 22. Deny the allegations contained in paragraph “22” of the Petition. 23. With regard to the allegations in paragraph “23” of the Petition, admit so much of the allegations as allege that Respondents were aware Petitioner had been terminated from his position within ninety (90) days of his termination, but deny the remaining allegations contained in that paragraph, and specifically state that the reason for Petitioner’s termination was due to his failure to meet the State requirements for bus drivers for in excess of one year. 24. With regard to the allegations in paragraph “24” of the Petition, deny knowledge or information sufficient to form a belief as to the truth of the allegation that Petitioner “remain[s] available for deposition[],” admit that Respondent Scott Peterson is still employed by the District, and deny the remaining allegations in that paragraph, including that the Respondent District is “available” for a deposition insofar the District is not a person able to give testimony. 25. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph “25” of the Petition. 26. Deny the allegations contained in paragraph “26” of the Petition. 27. Deny the allegations contained in paragraph “27” of the Petition. 4 of 11 FILED: CHAUTAUQUA COUNTY CLERK 02/21/2023 05:08 PM INDEX NO. EK12022001278 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/21/2023 28. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph “28” of the Petition. 29. The allegations in paragraph “29” of the Petition (incorrectly numbered as a duplicate “27”) constitute legal conclusions to which no response is required, and Respondent refers to the Court all conclusions of law. To the extent a response is deemed required, Respondents deny the allegations contained in paragraph “29” of the Petition. 30. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph “30” (incorrectly numbered as a duplicate “28”) of the Petition. GENERAL DENIAL 31. Deny each and every other allegation of the Petition not heretofore previously admitted, denied or otherwise controverted. FIRST AFFIRMATIVE DEFENSE AND OBJECTION IN POINT OF LAW 32. The Petition fails to state a cause of action for which relief may be granted. SECOND AFFIRMATIVE DEFENSE AND OBJECTION IN POINT OF LAW 33. The request for an Order permitting the Petitioner to serve a late Notice of Claim must be denied as the proposed claim for alleged age discrimination time-barred under N.Y. Education Law § 3813(2-b). 34. A court’s discretionary extension of time for service of notice of claim beyond the 90-day deadline under Education Law § 3813(2-a) “shall not exceed the time limited for the commencement of an action by the claimant against [the] district” (Educ. Law § 3813[2-a]). Stated differently, “if the applicable statute of limitations has expired, the court lacks jurisdiction to grant an extension” (Bucalo v E. Hampton Union Free Sch. Dist., 351 F Supp 2d 33, 35 [EDNY 2005]). 5 of 11 FILED: CHAUTAUQUA COUNTY CLERK 02/21/2023 05:08 PM INDEX NO. EK12022001278 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/21/2023 35. The deadline for commencement of an action by Petitioner for alleged discrimination is “one year after the cause of action arose” (Educ. Law § 3813[2-b] [emphasis added]; see Matter of Amorosi v S. Colonie Ind. Cent. Sch. Dist., 9 NY3d 367, 369 [2007] [holding that “the clear and unambiguous language of Education Law § 3813 (2-b) provides that the statute of limitations on . . . a claim [for workplace discrimination against a school district] is one year.”]). 36. Petitioner alleges that, “[b]eginning approximately two years ago [he] experienced differential treatment by his administration due to his age” when he was allegedly directed “to undertake extra physical examinations” and was prevented from performing his duties (Petition [Dkt. No. 1], ¶¶ 8-10 [emphasis added]). 37. Because the proposed claim arose more than one (1) year before the filing of the instant Petition and is accordingly time-barred, this Court lacks jurisdiction to grant Petitioner leave to file a late Notice of Claim under Education Law § 3813(2-a), and the Petition should accordingly be dismissed in its entirety on this basis. THIRD AFFIRMATIVE DEFENSE AND OBJECTION IN POINT OF LAW 38. In the alternative, the request for an Order permitting the Petitioner to serve a late Notice of Claim must be denied because the proposed claim is patently lacking merit. 39. Petitioner’s proposed claim for age discrimination is based on his assertion that he was “ready, willing, and able” (Petition [Dkt. No. 1], ¶ 8) to perform his duties as bus driver during the relevant period. Petitioner’s assertion is demonstrably false. 40. On February 4, 2021, Petitioner failed the medical examination established by the Commissioners of Education and Motor Vehicles required for bus drivers in New York State (see 15 NYCRR §§ 6.3[c][3], 6.10). A true and correct copy of Petitioner’s “Medical Examination 6 of 11 FILED: CHAUTAUQUA COUNTY CLERK 02/21/2023 05:08 PM INDEX NO. EK12022001278 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/21/2023 Report of Driver Under Article 19-A” executed on February 4, 2021 by Jill Muntz, Nurse Practitioner (herein the “Medical Examination Report”) is attached as Exhibit 1. 41. Specifically, Petitioner was deemed “NOT physically or medically qualified” pursuant to the governing regulations due to his shortness of breath at rest, heart murmur and diminished breath sounds (see Exh. 1, p. 2). 42. By correspondence dated April 15, 2021, the District enclosed a copy of Petitioner’s Medical Examination Report and advised him that he was not medically cleared to drive until he received a clearance letter from his primary care physician (PCP) with regard to the issues observed during his February 4, 2021 medical examination. A true and correct copy of the District’s correspondence dated April 15, 2021 is attached as Exhibit 2. 43. Upon information and belief, on or about May 17, 2021, Petitioner advised Roxanne Brazie, a registered nurse employed by the District, that he still needed to be seen by his cardiologist (an appointment for which was scheduled for July 19, 2021) before he could receive clearance from his PCP. 44. As of March 30, 2022, Petitioner still had not provided the District with a clearance letter from his PCP. 45. Accordingly, pursuant to correspondence dated March 30, 2022, the District advised Petitioner that his employment with the District would be terminated effective April 14, 2022, pursuant to Civil Service Law § 73, unless he could demonstrate that either (1) he had not been continuously absent from work for more than one year; or (2) that he is cleared to return to work (see N.Y. Civil Service Law § 73 [providing in pertinent part that an employer may terminate an employee who has been continuously absent from the duties of his position for one year or more 7 of 11 FILED: CHAUTAUQUA COUNTY CLERK 02/21/2023 05:08 PM INDEX NO. EK12022001278 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/21/2023 by reason of a non-occupational disability]). A true and correct copy of the District’s correspondence dated March 30, 2022 is attached as Exhibit 3. 46. The District did not receive any response from Petitioner to the District’s March 30, 2022 correspondence. 47. Accordingly, Petitioner’s termination became effective as of April 14, 2022. 48. Insofar as Petitioner was not qualified for the position of bus driver under the applicable State requirements, and, in fact, was absent from his duties as a bus driver due to his non-occupational disability for a full year, Petitioner’s proposed claim for age discrimination is patently lacking merit and his request to file a late notice of claim should accordingly be denied on this alternative basis. FOURTH AFFIRMATIVE DEFENSE AND OBJECTION IN POINT OF LAW 49. In the alternative, the request for an Order permitting the Petitioner to serve a late Notice of Claim must be denied because the remaining relevant facts and circumstances to be considered by the Court pursuant to Education Law § 3813(2-a) all weigh against the granting of such relief. 50. First, Petitioner has no reasonable excuse for failing to timely serve a Notice of Claim, as the law is settled that his alleged ignorance of the law (see Petition [Dkt. No. 1], ¶ 19) does not constitute a reasonable excuse for the delay (Matter of Murnane v N.Y. City Sch. Constr. Auth., 164 AD3d 506, 507 [2d Dept 2018]; Le Mieux v Alden High Sch., 1 AD3d 995, 996 [4th Dept 2003]). 51. Second, Petitioner has not established that Respondents had actual knowledge of the facts giving rise to the proposed claim within ninety (90) days thereof or a reasonable time thereafter. The District’s knowledge that Petitioner was out on disability for one year due to his 8 of 11 FILED: CHAUTAUQUA COUNTY CLERK 02/21/2023 05:08 PM INDEX NO. EK12022001278 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/21/2023 failure to meet the State requirements for bus drivers, and/or that Petitioner was subsequently terminated as a result of this period of disability, does not constitute knowledge of Petitioner’s proposed claim that he was subjected to discrimination due to his age. 52. Insofar as the proposed claim patently lacks merit, the Petitioner has failed to offer a legally acceptable excuse for the delay, and he has further failed to establish that Respondent’s had actual knowledge of his proposed discrimination claim within ninety (90) days, the Petition should be dismissed without further inquiry (see Matter of Candino v Starpoint Cent. Sch. Dist., 115 AD3d 1170, 1171 [4th Dept 2014]). 53. Nonetheless, Petitioner has also failed to establish that Respondents are not prejudiced as a result of the delay. To the contrary, Respondents have been deprived of the ability to investigate the allegations of age discrimination which Petitioner alleges date back “two years” (Petition [Dkt. No. 1], ¶ 8) before he filed the instant Petition. 54. Although Respondent Peterson is still employed by the District and thus is technically “available” to be deposed, his physical “availability” ignores that years have passed since the date Petitioner alleges he first experienced “differential treatment” by Mr. Peterson, allowing his memories to fade in the interim. 55. Furthermore, the medical examination that resulted in Petitioner being relieved from his bus driver duties occurred over two years ago (on February 4, 2021) and it was performed by a nurse practitioner (Jill Muntz) who is not an employee of the district. 56. Not only is it currently unknown whether Ms. Muntz is available to give testimony in this matter, but the ability of Ms. Muntz to recall the details of the medical examination is, upon information and belief, less now than it would have been ninety (90) days – or even within a year – after the examination. 9 of 11 FILED: CHAUTAUQUA COUNTY CLERK 02/21/2023 05:08 PM INDEX NO. EK12022001278 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/21/2023 57. These factors demonstrate that the District’s ability to defend Petitioner’s proposed claim on the merits has been prejudiced by the Petitioner’s delays, further warranting this Court’s denial of Petitioner’s request for leave to serve a late notice of claim. WHEREFORE, Respondents respectfully request that the Court enter an Order denying the Petition in its entirety, together with reasonable costs and disbursements of this action, and for such other and further relief that this Court deems just and proper. Dated: February 17, 2023 Buffalo, New York HARRIS BEACH PLLC By: Allison B. Fiut, Esq. Attorneys for Respondents 726 Exchange Street, Suite 1000 Buffalo, New York 14210 (716) 200-5050 afiut@harrisbeach.com TO: R. Thomas Rankin, Esq. Attorneys for Petitioner mailto:bknauth@lotempiopc.com617 Washington Street Jamestown, New York 14701 (716) 397-9193 10 of 11 FILED: CHAUTAUQUA COUNTY CLERK 02/21/2023 05:08 PM INDEX NO. EK12022001278 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/21/2023 11 of 11