
    Peter C. Flanagan, Appellant, v Board of Education, Commack Union Free School District, Respondent.
    Argued May 29, 1979;
    decided July 10, 1979
    
      POINTS OF COUNSEL
    
      David S. J. Neufeld and Douglas K. McNally for appellant.
    I. A defense founded upon subdivision 1 of section 3813 of the Education Law, which respondent initially interposed on appeal, is not a valid defense to appellant’s action. (Newburgh Nursery v Board of Educ., 41 Misc 2d 997; Matter of Martin v School Bd. of Union Free School Dist. No. 28, Long Beach, 301 NY 233; Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 43 AD2d 749, 35 NY2d 371; Matter of Di Sano v Storandt, 43 Misc 2d 272, 22 AD2d 6; Matter of Guilderland Cent. School Dist. [Guilderland Cent. Teachers Assn.], 45 AD2d 85; Matter of Board of Educ. [Great Neck Teachers Assn.], 69 Misc 2d 1061; Ruocco v Doyle, 38 AD2d 132; Wood v Strickland, 420 US 308.) II. Appellant is entitled to summary judgment against respondent school district which breached its contract with him. (City of Troy, Unit of Rensselaer County Ch. of Civ. Serv. Employees Assn. v City of Troy, 36 AD2d 145, 30 NY2d 549; Guaranty Trust Co. of N. Y. v New York & Queens County Ry. Co., 254 NY 126, 282 US 803; Matter of Hehl v Gross, 35 AD2d 570, 30 NY2d 828; Matter of People v MacDonald, 69 Misc 2d 456; United States Mtge. & Trust Co. v Ruggles, 232 App Div 9, 258 NY 32; Matter of Skliar v Board of Educ., 45 AD2d 1012; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65; Fairhaven Apts. v James, 79 Misc 2d 569; Matter of Wa-Wa-Yanda, Inc. v Dickerson, 18 AD2d 251; Matter of Pansa v Damiano, 14 NY2d 356.)
    
      Gerald Casper for respondent.
    I. Special Term did not have jurisdiction to enter its order since plaintiff-appellant failed to file a written verified notice of claim pursuant to subdivision 1 of section 3813 of the Education Law and failed to allege the presentation of said written verified notice of claim in his amended complaint. Defendant-respondent did not waive the notice requirements nor is defendant-respondent estopped from asserting the notice requirements. (Barchet v New York City Tr. Auth., 20 NY2d 1; Rudolph v City of New York, 191 Misc 947; Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, 36 NY2d 807; Ruocco v Doyle, 38 AD2d 132; Matter of Grey v Board of Educ., 60 AD2d 361, 44 NY2d 645; Todd v Board of Educ., 272 App Div 618, 297 NY 873; Matter of Board of Educ. [Wager Constr. Co.], 37 NY2d 282; Scherman v Board of Educ., 44 AD2d 831, 37 NY2d 839; Almar Constr. Corp. v Hughes & Sons, 58 AD2d 615, 42 NY2d 1009; Central School Dist. No. 2, Towns of Romulus, Varick & Fayette v Kasoff & Sons, 53 AD2d 1058.) II. The alleged agreement, dated July 15, 1975, is illegal, void and against the public policy of the State of New York. Chapter 952 of the Laws of 1974 is unconstitutional in that it is contrary to the public policy of the State of New York, unreasonable, vague and impossible of execution and enforcement. (Matter of Young v Board of Educ., 35 NY2d 31; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Mitchell v Board of Educ., 40 NY2d 904; Matter of Van Heusen v Board of Educ., 26 AD2d 721; Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 583; Matter of Baer v Nyquist, 34 NY2d 291.)
   OPINION OP THE COURT

Meyer, J.

The issues on this appeal are whether plaintiffs failure to file a notice of claim pursuant to subdivision 1 of section 3813 of the Education Law bars his action to enjoin the termination of his position as a school principal and for damages for the breach of his contract; and if the action is not thus barred, whether section 2510 of the Education Law is to be read as terminating plaintiffs contract rights when his position is abolished even though the contract contains no such express provision. We hold that, the school district having failed to plead the statute, subdivision 1 of section 3813 does not bar the action, and that the abolition of a position pursuant to section 2510 does not destroy contract rights of the holder of the position. The order of the Appellate Division granting the school district’s cross motion for summary judgment is, therefore, reversed, the order of Special Term granting plaintiffs motion for summary judgment and denying defendant’s cross motion is reinstated, and the matter is remitted to Special Term for assessment of damages.

The plaintiff, Peter Flanagan, has been an elementary school principal in the Commack Union Free School District since February 1, 1972. At that time the Legislature had recently deleted the "principal” position from the tenure system, and Flanagan was given no contract of employment. He served, therefore, at the pleasure of the board of education. In 1974, however, the Legislature amended section 3012 of the Education Law to make the use of employment contracts mandatory as of July 1, 1975 (L 1974, ch 952, § 2), and on July 15, 1975 defendant school district entered into the agreement which is the subject of this action, employing Flanagan as a principal for a three-year term, from July 1, 1975 to June 30,1978.

Pressed by the "budget crunch” and flagging student enrollment, the school district in 1976 decided to eliminate two elementary school principal positions. On April 2, 1976, therefore, Flanagan received a letter from the superintendent of schools terminating his services as of June 30, 1976.

Flanagan did not await the July 1, 1976 termination date before beginning this action. Instead by order to show cause granted May 28, 1976, he began this action against the board in which he sought an injunction prohibiting his termination and ordering his reinstatement to the principal’s position, as well as damages. The complaint did not allege the service of a section 3813 notice of claim, nor has any document denominated as such a notice ever been served.

The school district’s answer raised three affirmative defenses: (1) that the employment agreement was void as against public policy, (2) that the amendment to section 3012 of the Education Law which required the use of employment contracts was unconstitutional, and (3) that Flanagan failed to mitigate his damages. On cross motions for summary judgment, the Supreme Court, Suffolk County, granted partial summary judgment in favor of Flanagan, referring the issue of damages (including the mitigation defense) for a hearing. On appeal to the Appellate Division, the school district claimed for the first time that plaintiff’s failure to serve a notice of claim barred the action.

The Appellate Division reversed and granted the school district’s cross motion for summary judgment, stating: "It is undisputed that plaintiff failed to file a written notice of claim as required by subdivision 1 of section 3813 of the Education Law * * * [A] notice of claim was a condition precedent to the commencement of this action”.

We conclude, however, that under the circumstances of this case subdivision 1 of section 3813 may not be interposed as a bar to plaintiff’s claim. The school district, though it pleaded other defenses, failed to raise the issue at Special Term, bringing the question up for the first time in its Appellate Division brief. While service of a notice of claim is a statutory condition precedent which does not have to be pleaded as an affirmative defense (Board of Educ. [Wager Constr. Corp.], 37 NY2d 283; Matter of Board of Educ. [Heckler Elec. Co.], 7 NY2d 476), the defense is, nevertheless, one which if not raised before the court of original jurisdiction is waived (Matter of Schlosser v Board of Educ., 47 NY2d 811; cf. Salesian Soc. v Village of Ellenville, 41 NY2d 521).

Turning then to consideration of the effect of section 2510 of the Education Law upon plaintiff’s rights, we note that nothing in the Constitution, statute or public policy prohibits a school district from extending to this plaintiff the benefit of a three-year contract term (see Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268; Matter of Susquehanna Val. Cent. School Dist. [Susquehanna Val. Teachers' Assn.], 37 NY2d 614). Indeed, when plaintiff’s contract was executed section 3012 of the Education Law required use of employment contracts. In light of that fact and of the obvious benefit in attracting the best qualified persons that the offer of a contract for a definite period affords, it cannot be said that plaintiff’s contract is void as against public policy.

Nor does it conflict with section 2510 of the Education Law. That statute merely provides, inter alia, "Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” Whether this provision applies to the abolition of positions that are not tenured we need not now decide. Assuming that the school district can abolish appellant’s position, that does not destroy the rights that he has under contract (see Board of Educ. v Yonkers Federation of Teachers, supra).

Accordingly, we reverse and reinstate the order of Special Term, with costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg. concur.

Order reversed, with costs, the order of Special Term reinstated insofar as it granted plaintiff’s motion for summary judgment and denied defendant’s cross motion, and the case remitted to Supreme Court, Suffolk County, for assessment of damages.  