In hybrid Article 78/42 USC 1983, a timely 42 USC 1983 action will survive notwithstanding the fact that the Article 78 action was untimely
The Appellate Division reversed the Supreme Court’s denial of a petition filed by a tenured educator alleging that the New York City Department of Education (DOE) improperly terminated her in violation of her rights to procedural due process under both the State and Federal Constitutions.
The teacher had filed an Article 78 petition, which must be filed within four  months of the act or omission complained of to be timely and, in addition, raised essentially the same claims in her complaint under 42 USC §1983, which has a three-year statute of limitations. Supreme Court had ruled that the teacher’s Article 78 petition was untimely and dismissed the action notwithstanding the fact that her 42 USC §1983 had been timely filed within her Article 78 petition.
The Appellate Division disagreed with Supreme Court’s action, noting that the teacher had filed a “hybrid article 78 proceeding/42 USC §1983 action.” The Appellate Division explained that as federal and state courts possess concurrent jurisdiction over 42 USC §1983 actions, to hold that the teacher could not bring her 42 USC §1983 claims solely because she asserted them in the same action in which she seeks Article 78 relief due to the latter's much shorter statute of limitations would impermissibly conflict with 42 USC §1983's broad remedial purpose and result in different outcomes based solely on whether the federal claims are brought in state or federal court.
The court concluded that the teacher’s petition properly raised claims under 42 USC §1983 and thus her petition could be maintained as a hybrid action, citing Bistrisky v NYS Department of Correctional Services, 23 AD3d 866
Holding that the teacher’s action should be reinstated, the matter was remanded to Supreme Court.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06851.htm