Matter of Gabriel v Department of Educ.
2012 NY Slip Op 31102(U)
April 23, 2012
Supreme Court, New York County
Docket Number: 102539/10
Judge: Donna M. Mills
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PKESISNT : DONNA M. MILLS
I El' AI<'1M EN I OF E DI1C A'I 1O N , ct 31.,
I< cs poll den t s .
Tlic following p p e r s , niimbcrcd I t o
Notice ol' MotioidOrder lo Show Cause-Aftidavits- Exhibits ....
IJpon tlic foregoing papcrs, it is ordered that this Inotion is:
4 \ 1 3 JL
hnswcriiig Al'lidavi(s- Exhibits
C ' I i 0 S S - MOT10 N
were read oil this motion
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: IAS PART 58
In the Matter of the Application of
For a Judgment under Article 78
of the Civil Practice Law and Rules.
Index No. 102539/10
In this Article 78 proceeding, petitioner Aretha Gabriel, a former teacher, seeks a
judgment annulling the determination of the Department of Education ("DOE"), which
terminated her employment.
Petitioner commeiiced her employment with the DOE in the 1990's and received
tenure in 2001. However, petitioner allowed her teaching license to lapse and she was
ultimately removed from payroll in July 2007. Due to the lapse of her license, petitioner
was advised to secure another teaching position, and thus was to serve as a
petitioner was appointed as a probationary employee at
On August 30, 2007,
P.S. 308 in Brooklyn, N.Y. Petitioner was due to complete a one-year probationary
period on August 30, 2008. In or around 2007 and 2008, Petitioner was found guilty of
misconduct by t h e Special Commissioner of Investigation for the New York City School
District. Thereafter, by letter dated June 25, 2008, petitioner was notified that her
services as a probationary employee would be terminated, effective August 27, 2008.
On August 5, 2008, petitioner was notified of her placement on the
Ineligible/lnquiry list due to inappropriate conduct. On October 6, 2008, petitioner
instituted an administrative review pursuant to C-31 of the Chancellorâs Regulations
seeking to review, among other things, the termination of her DOE license, and her
placement on the lneligiblellnquiry list. By letter, dated June 2, 2009, and allegedly
received by petitioner on October 28, 2009, the Deputy Chancellor of Teaching and
Learning, Marcia V. Lyles, notified petitioner of the decision to reaffirm the June 25,
2008 decision to terminate petitionerâs employment and the termination of the DOE
On February 25, 2010, petitioner commenced the instant Article 78 petition
seeking an order annulling the August 27, 2008 determination of the DOE to terminate
her probationary employment, and directing respondents to reinstate petitioner to her
former position as a tenured teacher.
Education Law Â§ 3813(1) declares that:
â[n]o action or special proceeding, for any cause whatever, except as
hereinafter provided, ... involving the rights or interests of any district or
any such school shall be prosecuted or maintained against any
. . . board
unless it shall appear by and as an allegation in the
complaint or necessary moving papers that a written verified claim upon
which such action or special proceeding is founded was presented to the
governing body of said district or school within three months after the
accrual of such claim, and that the officer or body having the power to
adjust or pay said claim has neglected or refused to make an adjustment
or payment thereof for thirty days after such presentment.
In the case at bar, petitioner has brought a proceeding without filing a timely
notice of claim. Petitioner concedes not having filed a Notice of Claim within three
months of the termination of her probationary employment, yet alleges that it was
unnecessary. This Court finds that petitioner should have filed a notice of claim by
November 27, 2008; that is, within three months of the termination of petitionerâs
probationary employment on August 27, 2008. However, petitioner filed this proceeding
on February 25, 201 0, eighteen months after the termination of her probationary
employment. Therefore, because petitioner failed to file a timely Notice of Claim
pursuant to Section 381 3, the petition must be dismissed.
Petitionerâs challenge to the termination of her probationary employment is also
time-barred. An Article 78 proceeding must be commenced âwithin four months after the
determination to be reviewed becomes final and binding on the petitionerâ (CPLR 217
I]). agency determination becomes final and binding when the aggrieved party
received actual notice of the determination. (Matter of Metropolitan Museum Historic
Dist. Coalition v De Montebello, 20 AD3d 28 [lâ Dept 20051). It is noted again,
Petitioner received actual notice of the termination of her probationary employment on
August 27, 2008.
â[Aln Article 78 proceeding commenced by a probationary teacher more than
four months after t h e dischargeâ was untimely ( Matter of Schulman v Board of.Educ. of
City of N.Y., 184 AD2d 643, 644 [2d Dept 19921). Petitionerâs contention that the
limitations period should have been extended or tolled while she invoked the review
procedures contained in the collective bargaining agreement is unavailing. "Petitioner's
time to commence a CPLR article 78 proceeding was not extended by her
administrative appeal of (the) determination" to terminate her probationary
employment], M-atter of Triana v Board of Educ. of City School Dist. of Citv of N Y., 47
AD3d 554, 557 [Ist Dept 20081 ["The law is well established that a decision to terminate
the employment of a probationary teacher is final and binding on t h e date the
termination becomes effective, and this is true even in circumstances where
ad m inist rative review is av a iIabIe"]).
Petitioner's claim that the termination of her probationary employment was
invalid because she was, in fact, a tenured employee is also without merit, since it is
undisputed that the instant CPLR article 78 proceeding was not brought within four
months of the letter advising petitioner of the termination of her probationary
employmeiit The Court finds no distinction in the time to bring the Article 78 proceeding
based on whether the petitioner
a probationary or tenured employee (see Matter of
v New York City Bd. of Educ., 284 AD2d 140, 140-141 [ l s t Dept 20041).
In the instant matter, petitioner was notified, by letter dated June 25, 2008, that
in accordance with Section 2573 Subdivision 1 of the Education Law, the DOE was
denying her certification of completion of probation and that her services would
terminate as of August 27, 2008. Therefore petitioner was aggrieved and her cause of
action to challenge her probationary termination and seek reinstatement and/or back
on August 27, 2008. Since the instant proceeding was not commenced
until February 5, 201 0, eighteen months after the termination of her probationary
employment, petitioner's attempt to challenge her termination is barred by the four
month statute of limitations applicable to Article 78 proceedings. See CPLR Â§ 217
Accordingly, it is hereby
ORDERED and ADJUDGED that the petition is denied and it is further
ORDERED and ADJUDGED that t h e cross motion is granted and the proceeding