Matter of James v Klein

Matter of James v Klein 2007 NY Slip Op 06929 [43 AD3d 764] September 25, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 7, 2007

In the Matter of Dorita L. James, Petitioner,
v
Joel Klein, as Chancellor of the New York City Department of Education, et al., Respondents.

—[*1] Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for petitioner.

Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.

Proceeding (transferred to this Court by order of Supreme Court, New York County [Lewis Bart Stone, J.], entered February 10, 2006), to the extent it challenges respondent Chancellor's determination, dated June 1, 2005, which sub silentio sustained petitioner's termination as a probationary assistant principal, unanimously dismissed, without costs. To the extent the petition challenges the Chancellor's sustaining of petitioner's "unsatisfactory" rating for the period ending June 2004, the matter is remanded to Supreme Court for further proceedings consistent herewith, without costs.

Initially, we note that this proceeding was improperly transferred to this Court pursuant to CPLR 7804 (g). The appropriate standard of review to be applied here was whether the determination was arbitrary and capricious (see e.g. Matter of Von Gizycki v Levy, 3 AD3d 572 [2004]), and not whether the determination was supported by substantial evidence (CPLR 7803 [4]). Nevertheless, we will determine the issues presented, to the extent the record before this Court allows (see Matter of 125 Bar Corp. v State Liq. Auth. of State of N.Y., 24 NY2d 174 [1969]).

Petitioner failed to commence this proceeding within four months of the effective termination of her probationary employment. Her challenge to the discontinuance of her probationary status is thus time-barred (see CPLR 217 [1]; Friedland v New York City Dept. of Educ., 39 AD3d 395 [2007]).

Respondents concede that the challenge to the unsatisfactory rating is not time-barred. We decline to consider the merits of that portion of the petition, since respondents have not had [*2]the opportunity to answer (CPLR 7804 [f]), and a complete record is not before the court. Concur—Tom, J.P., Saxe, Friedman, Gonzalez and McGuire, JJ.