Key Points

  • An employment discrimination claim against a school employer accrues when the adverse employment decision is made and communicated to the employee, regardless of any later grievance proceeding.
  • Because Edholm applied within one year of accrual, the court had discretion under Education Law § 3813(2-a) to extend her time to serve a notice of claim.
  • Her failure to show a reasonable excuse was not fatal because the respondents gained actual knowledge of the essential facts within 90 days through her grievance and would not be prejudiced.
  • Exercising its own discretion, the Fourth Department reversed, granted the application, and deemed the notice of claim timely served nunc pro tunc.

A New York appeals court on Oct. 9 revived a former BOCES employee's bid to pursue a discrimination claim against her former employer, even though she missed the 90-day deadline to give notice of the claim and offered no reasonable excuse for the delay. The court held that the grievance she filed over her firing gave the employer timely knowledge of the facts.

The Appellate Division, Fourth Department, unanimously reversed an Erie County Supreme Court order that had denied Lessa Edholm leave to serve a late notice of claim on the Board of Cooperative Educational Services Erie 1 BOCES and Eileen Fleming, its HR director, who is named individually and in that role. The panel granted Edholm's application and deemed her notice timely served nunc pro tunc.

The decision addresses two questions under General Municipal Law § 50-e and Education Law § 3813, the statutes that set the notice requirement for claims like Edholm's. The panel held that an employment discrimination claim accrues when the employee is told of the firing, not when the employer later responds to a grievance. It also concluded that the record established that the grievance Edholm filed within the 90-day period gave the respondents actual knowledge of the essential facts of the claim, and that the late notice would not prejudice them.

The ruling came in an unsigned memorandum from a panel of Justices Lindley, Curran, Ogden, Delconte and Hannah, with Justice Lindley presiding. Justice Emilio Colaiacovo of Supreme Court had denied Edholm's application in an order entered May 5, 2025.

Edholm lost the first point. She had argued that her claim accrued on the date she received a copy of the respondents' written response to the grievance she filed challenging her termination. The panel rejected that contention and held that "claimant's claim accrued the date that she was advised her employment had been terminated."

The panel quoted a 2001 First Department decision for the rule that "An employment discrimination claim accrues on the date that an adverse employment determination is made and communicated to the plaintiff." That rule applies, the panel wrote, "irrespective of what occurs during any subsequent grievance proceeding." Counting from the termination, the panel concluded that Edholm "failed to serve a written notice of claim within 90 days of the accrual of her claim."

That conclusion did not end the case. Education Law § 3813 allows a court to extend the deadline when the claimant applies within "one year after the cause of action arose," and Edholm had applied within that period. As a result, the panel wrote, "the court, in its discretion, may extend the time to serve a notice of claim."

The panel then set out the factors that govern such requests. A court must consider "whether the claimant has shown a reasonable excuse for the delay, whether the [respondents] had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause" substantial prejudice to the respondents, the panel wrote, quoting a 2016 Fourth Department decision. Although any single factor is not determinative, the panel wrote, "one factor that should be accorded great weight is whether [respondents] received actual knowledge of the facts constituting the claim in a timely manner."

The panel exercised that discretion itself. It quoted a 2016 decision describing a ruling on a late-notice request as "purely a discretionary one." It also quoted its own 2020 precedent holding that while a trial court's discretion is generally upheld, "such discretion is ultimately reposed in [the Appellate Division]."

Applying the factors, the panel acknowledged that Edholm "failed to demonstrate a reasonable excuse for failing to serve a timely notice of claim." It held that the omission did not defeat her application. Quoting a 2015 Fourth Department decision, the panel wrote that such a failure "is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [respondents]."

Edholm's grievance satisfied the remaining two factors. The panel concluded that the record established that the respondents "acquired actual knowledge of the essential facts constituting the claim" within the 90-day period when Edholm filed the grievance challenging her termination. The panel cited decisions of the Second Department and the Third Department in support.

The panel also concluded that BOCES and Fleming would not be prejudiced by the late notice "inasmuch as they had the ability to collect whatever evidence they needed and gather and preserve any witness statements at the time the grievance was filed."

Lawyers for Edholm included Josephine A. Greco of Greco Trapp, PLLC, in Buffalo. BOCES and Fleming were represented by Heather L. DeChert of Webster Szanyi LLP, also in Buffalo.

The panel reversed without costs. The memorandum does not address the merits of the discrimination claim, and the decision, reported as 2026 NY Slip Op 05882, remains subject to revision before publication in the Official Reports.