Matter of Myers v City of New York

Matter of Matter of Myers v City of New York 2012 NY Slip Op 06557 Decided on October 2, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 2, 2012
Friedman, J.P., Acosta, Renwick, Richter, Abdus-Salaam, JJ.
8149 116672/10

[*1]In re Antoinette Myers, Petitioner-Appellant,

v

City of New York, et al., Respondents-Respondents.




The White Rose Group, LLC, Jackson Heights (Vincent P.
White of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Diana
Lawless of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Judith J. Gische, J.), entered July 14, 2011, which denied the petition seeking to vacate the hearing officer's determination which found petitioner New York City schoolteacher guilty of various specifications and recommended the termination of her employment, and granted respondents' cross motion to dismiss the proceeding brought pursuant to Education Law § 3020-a(5) and CPLR 7511, unanimously affirmed, without costs.

Respondent Department of Education brought specifications against petitioner, a tenured teacher, and ordered a disciplinary hearing in accordance with Education Law § 3020—a. The hearing officer sustained the vast majority of the specifications and by determination dated November 26, 2010, recommended terminating petitioner from her employment.

On December 17, 2010, petitioner signed for and received by certified mail a copy of the hearing officer's determination. Thereafter, by notice of petition dated December 28, 2010, petitioner commenced this proceeding to vacate the hearing officer's determination. Petitioner acknowledges that Supreme Court was open on December 27, 2010, but argued that the historical snowstorm that occurred on that date resulted in the unavailability of mass transit, and rendered the courthouse inaccessible.

Education Law § 3020-a(5) provides that "[n]ot later than ten days after receipt of the hearing officer's decision, the employee. . .may make an application. . .to vacate or modify the decision of the hearing officer pursuant to [CPLR 7511]."
Accordingly, the petition was properly dismissed as time-barred based on petitioner's failure to file the petition within the 10-day limitation period (see Matter of Juste v Klein, 83 AD3d 468 [1st Dept 2011]; Matter of Awaraka v Board of Educ. of City of N.Y., 59 AD3d 442 [2d Dept 2009]). Despite petitioner's predicament, the court was without authority to extend the
statute's limitations period (see Matter of Watkins v Board of
Educ. of Port Jefferson Union Free School Dist., 26 AD3d 336, 338 [2d Dept 2006]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. [*2]

ENTERED: OCTOBER 2, 2012

CLERK