Pak v New York City Dept. of Educ.

[*1] Pak v New York City Dept. of Educ. 2009 NY Slip Op 50154(U) [22 Misc 3d 1117(A)] Decided on February 2, 2009 Supreme Court, Kings County Schneier, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 2, 2009
Supreme Court, Kings County

Kifan Pak, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules,

against

The New York City Department of Education, Respondent.



1601/2008



ATTORNEYS FOR PETITIONER

KIFAN PAK

WESTERMANN, HAMILTON, SHEEHY,

AYDELOTT & KEENAN, LLP

222 BLOOMINGDALE ROAD, SUITE 305

WHITE PLAINS, NEW YORK 10605

(914) 946-7770

ATTORNEYS FOR REPONDENTS

THE NEW YORK CITY DEPARTMENT OF EDUCATION

MICHAEL A. CARDOZO, ESQ.

CORPORATION COUNSEL OF THE CITY OF NEW YORK

100 CHURCH STREET, ROOM 2-139

NEW YORK, NEW YORK 10007-2601

(212) 442-3229

Martin Schneier, J.

By letter dated February 21, 2007, petitioner was informed that his position as a probationary teacher would be terminated on February 28, 2007. Petitioner pursued an administrative appeal which resulted in the decision to terminate him being sustained by a letter dated September 11, 2007 and received by petitioner on [*2]September 15, 2007.

In this Article 78 proceeding petitioner, Kifan Pak, petitions the Court to reverse and annul the decision of respondent, the New York City Department of Education, to terminate him as a probationary teacher. The respondent, cross-moves to change the venue to New York County and, in the alternative, to dismiss the petition on the grounds that it is time-barred pursuant to CPLR Section 217.

Background

By the letter from the respondent's Local Instructional Superintendent dated January 29, 2008, petitioner was informed that: "I will review and consider whether your services as a probationer be discontinued and your license terminated as of the close of business February 28, 2007."

By letter dated February 21, 2007 from the respondent's Local Instructional Superintendent the petitioner was informed that: "after reviewing all appropriate documentation, I affirm your Discontinuance of Probationary Service and Termination effective close of business February 28, 2007."

Petitioner then pursued an administrative appeal pursuant to the teachers' union's collective bargaining agreement. An administrative hearing was then held which resulted in the letter dated September 11, 2007 from the Deputy Chancellor, Teaching and Learning which stated that: "I have reviewed the report of my Committee concerning the recommendation that all your teaching certificate(s)/license(s) be terminated...and that your probationary service as a teacher of mathematics be discontinued."...After careful consideration of your case, I have determined to sustain the recommendation...Any and all teaching certificate(s)/license(s) held by you are hereby terminated effective March 1, 2007, the date your name was placed on the Invalid/Inquiry List."

Petitioner commenced this Article 78 proceeding to vacate the decision on January 15, 2008.

Discussion

CPLR Section 506(b) provides, in pertinent part, that an Article 78 proceeding: "Shall be commenced in any county within the judicial district where[*3]the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceedings were brought or taken in the course of which the matter sought to be restrained originated, or where the material events otherwise took place, or where the principal office of the respondent is located..."

In this case, the material events, including the administrative hearing and the 3 years of the petitioner's teaching experience, took place in Brooklyn. Accordingly, venue of this Article 78 proceeding in Kings County is proper.

CPLR Section 217 provides in pertinent part:

"a proceeding against a body or officer must be

commenced within four months after the

determination to be reviewed becomes final

and binding upon the petitioner or person whom

he represents in law or in fact".

Thus, an Article 78 proceeding to challenge an administrative decision must be commenced within four months of the determination that is being challenged. "A petitioner is aggrieved once the agency has issued an unambiguously final decision that puts the petitioner on notice that all administrative appeals have been exhausted" (Carter v. State of New York Executive Dept., Div. of Parole, 95 NY2d 267, 270 [2000]). However, the internal administrative review of a final determination to terminate a probationary teacher as provided for in the teacher's union contract does not toll or extend the four months limitation period because this is only a procedural contractual right, not a constitutional or statutory right (Matter of Frasier v Board of Education of City School Dist. Of City of NY, 71 NY2d 763 [1988], Schulman v Board of Education of City of New York, 184 AD2d 643 [2d Dept 1992]).

Accordingly, the decision by the respondent to terminate petitioner's probationary teacher's services on February 28, 2007, constituted the final decision of the matter. This termination letter also represented a final decision that the petitioner was not tenured (Lipton v New York City Board of Education, 284 AD2d 140 (1st Dept 2001).

In the instant case the four months statute of limitations began to run on February 28, 2007, the date of petitioner's final termination, and his time [*4]to commence this proceeding expired on June 28, 2007. This Article 78 proceeding having been commenced more than four months after February 28, 2007, to wit, on January 15, 2008, was untimely and the proceeding is time-barred under CPLR 217.

Conclusion

In sum, respondent's cross-motion to dismiss the petition as time-barred is granted and this petition is dismissed.

Respondent's request to change venue is denied. Petitioner's petition to reverse and annul respondent's determination to terminate him as a probationary teacher is denied in view of the court's decision herein.

This constitutes the decision and order of the Court.

_____________________

J.S.C.