Filing an administrative appeal does not extend or toll the statute of limitations for filing a timely Article 78 petitionA former teacher asked Supreme Court to annul the determination of the New York City Department of Education (DOE) that terminated her employment.
The teacher had earlier allowed her teaching license to lapse and she was removed from payroll. She was subsequently advised to “secure another teaching position” and was to serve as a probationary employee.
Appointed as a probationary employee, she was found guilty of misconduct by the Special Commissioner of Investigation for the New York City School District and notified that her services as a probationary employee would be terminated and placed on the “Ineligible/lnquiry list due to inappropriate conduct.”
In response to her administrative appeal the teacher was ultimately advised of the decision to reaffirm the underlying decision to terminate her employment and the termination of her DOE license.
Supreme Court dismissed the teacher’s petition because she failed to file a timely notice of claim in accordance with Education Law §3813(1).
Although the teacher conceded that she had not filed the Notice of Claim within three
months of the termination of her probationary employment, she contented that it was unnecessary for her to do so. Justice Mills disagreed, holding that she was required to file the notice of claim within three months of her termination.
Turning to another procedural matter, Supreme Court held that the teacher’s Article 78 challenge to the termination of her probationary employment is also time-barred, having been filed some 18 months after she was terminated from her probationary appointment.
Pointing out that an Article 78 proceeding must be commenced “within four months after the determination to be reviewed becomes final and binding on the petitioner,” the court said that “An agency determination becomes final and binding when the aggrieved party received actual notice of the determination” and is neither extended nor tolled by the individual’s seeking administrative relief.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2012/2012_31102.pdf