
    Peter C. Flanagan, Respondent, v Board of Education, Commack Union Free School District, Appellant.
   In an action upon a contract of employment, in which plaintiff seeks, inter alia, a money judgment for unpaid salary from the date of his termination and reinstatement to his position as an elementary school principal in the Commack Union Free School District, defendant appeals from an order of the Supreme Court, Suffolk County, dated August 29, 1977, which denied its cross motion for summary judgment and, on plaintiff’s motion for summary judgment, inter alia, determined that plaintiff was entitled to be employed from the date of the order for the remaining term of his contract. Order reversed, on the law, without costs or disbursements, plaintiff’s motion denied and cross motion granted. 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. Since the complaint seeks damages as well as equitable relief, the claim is not primarily equitable in nature and a notice of claim was a condition precedent to the commencement of this action (see Ruocco v Doyle, 38 AD2d 132). On this record, we do not find such facts as would establish either that defendant waived the notice requirement or was estopped from asserting it. Hopkins, J. P., Titone, Gulotta and O’Connor, JJ., concur.  