BACKGROUND AND PROCEDURAL HISTORY Plaintiff commenced this action pursuant to a summons and complaint filed on April 21, 2014, seeking a judgment in the amount of $4,155.37 for salary overpayment. Proof of service was filed on June 20, 2014. Defendant appeared pro se on March 20, 2014 and filed an answer asserting that he does not owe plaintiff any sums, and the amount paid was due based an a prior agreement between the parties. On December 12, 2017, the court (Ramseur, J) issued a decision directing the parties to exchange discovery within 120 days and setting a trial date for April 26, 2018. The trial was adjourned to October 15, 2018, and marked final as against both parties. On October 15, 2018, counsel appeared for defendant and the court (Walker-Diallo, J) issued an order transferring the action to the general calendar, as both parties were now represented by counsel. On or about August 7, 2020, defendant served an amended answer on plaintiff alleging one affirmative defense — that the account stated or balance due as alleged in the complaint was not accurate. The amended pleading also contained two counterclaims, namely that defendant was promised a $5000 payment as an inducement to retire, and that defendant was entitled to a 4 percent pay increase retroactive to 2009 resulting in $90,000 in damages based on the failure to calculate his pension at the correct annual salary. To date, it does not appear that plaintiff has filed a notice of trial. THE PENDING MOTIONS On October 7, 2020, plaintiff moved for an order striking defendant’s amended answer and counterclaims, and dismissing defendant’s counterclaim. Plaintiff seeks to strike the proposed amended pleading because defendant failed to obtain leave of court before serving and filing it. Plaintiff further argues that NY Education Law §3813 requires that a written verified notice of claim have been served on the plaintiff prior to the commencement of any action and within three months of accrual of the claim. On the same date, defendant cross-moved for an order granting leave to serve an amended answer and granting leave to serve notices of claim with respect to two counterclaims in the proposed amended pleading. On October 16, 2020, the motions were assigned to this court for determination. The motion and cross-motion are consolidated herein for disposition. DISCUSSION CPLR §3025 governs amended pleadings and provides in pertinent part: …a party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances NY C.P.L.R. 3025 (McKinney). NY Educ. Law §3813(1) provides in pertinent part: No action or special proceeding, for any cause whatever…or claim against the district or any such school…shall be prosecuted or maintained against any school district, board of education….unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment NY Educ. Law §3813(2-a) provides in pertinent part: Upon application, the court, in its discretion, may extend the time to serve a notice of claim. The extension shall not exceed the time limited for the commencement of an action by the claimant against any district or any such school. In determining whether to grant the extension, the court shall consider, in particular, whether the district or school or its attorney or its insurance carrier or other agent acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one of this section or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including….whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the district or school or its insurance carrier…..and whether the delay in serving the notice of claim substantially prejudiced the district or school in maintaining its defense on the merits. An application for leave to serve a late notice shall not be denied on the ground that it was made after commencement of an action against the district or school. NY Educ. Law §3813(2-b) provides in pertinent part “…no action or special proceeding shall be commenced against any entity specified in subdivision one of this section more than one year after the cause of action arose…”. The purpose of §3813, which requires presentment of the claim to the school district’s governing body within three months after accrual, is to give the school district prompt notice of such claim in order that investigation might be conducted in a timely manner (see Parochial Bus Systems v. Board of Education of the City of New York, 60 NY2d 539, 547-549, 470 N.Y.S.2d 564, 458 N.E.2d 1241). As such, it is a condition precedent to the commencement of an action against any school district or board of education (Public Improvements v. Board of Education of the City of New York, 56 NY2d 850, 453 N.Y.S.2d 170, 438 N.E.2d 876). Morley v. Arricale, 104 AD2d 207, 211 (1984), aff’d 66 NY2d 665 (1985). Finally, CPLR 203(d) provides in pertinent part: A…..counterclaim is not barred if it was not barred at the time the claims asserted in the complaint were interposed, except that if the….counterclaim arose from the transactions, occurrences, or series of transactions or occurrences, upon which a claim asserted in the complaint depends, it is not barred to the extent of the demand in the complaint notwithstanding that it was barred at the time the claims asserted in the complaint wereinterposed. NY C.P.L.R. 203 (McKinney) In defendant’s pro se answer, although not denominated a “counterclaim” defendant stated that there was an agreement between the parties that if he retired he would receive as an incentive two weeks pay. Courts will liberally interpret pro se pleadings. The pleading did put plaintiff on notice of defendant’s claim. However, no notice of claim was filed, and even at the time the pro se answer was filed, the statute of limitations had expired. Under CPLR 203(d), claims and defenses that arise out of the same transaction as a claim asserted in the complaint are not barred by the statute of limitations, even though an independent action by the defendant might have been time-barred at the time the action was commenced. This provision allows a defendant to assert an otherwise untimely claim which arose out of the same transactions alleged in the complaint, but only as a shield for recoupment purposes, and does not permit the defendant to obtain affirmative relief (see Carlson v. Zimmerman, 63 AD3d 772, 882 N.Y.S.2d 139; Harrington v. Gage, 43 AD3d 1393, 843 N.Y.S.2d 745; DeMille v. DeMille, 5 AD3d 428, 774 N.Y.S.2d 156). Balanoff v. Doscher, 140 AD3d 995, 996 (2016). Based on the foregoing authority the motion and cross-motion are granted to the following extent: Defendant is granted leave to serve and file the proposed amended answer with the exception of the second counterclaim within ten days of recipt of this order with notice of entry. The second counterclaim has an expired statute of limitations, was not referenced in any manner in the original pleading, and is not sufficiently related to fall under the umbrella of CPLR §302(d). Defendant is granted leave to file a late notice of claim as to the first counterclaim which was asserted, though inartfully, in the original pro se pleading, however, the court will only consider said counterclaim in accordance with CPLR §302(d) as a set off to any recovery obtained by plaintiff and not as a basis for affirmative relief. The balance of relief requested by the parties is denied. This constitutes the decision and order of the Court. Dated: October 16, 2020
