OPINION OF THE COURT

Order reversed, with costs, and case remitted to the Appellate Division, Fourth Department, for consideration on the merits. The defense of failure to give notice under subdivision 1 of section 3813 of the Education Law, not having been raised in the court of original jurisdiction, was waived (Flanagan v Board of Educ., 47 NY2d 613, 617; Matter of Schlosser v Board of Educ., 47 NY2d 811).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.