Matter of Nash v Board of Educ. of the City School Dist. of the City of N.Y.

Matter of Nash v Board of Educ. of the City School Dist. of the City of New York 2011 NY Slip Op 01693 Decided on March 8, 2011 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 March 8, 2011
Tom, J.P., Sweeny, Renwick, Freedman, Manzanet-Daniels, JJ.
4441 112365/08

[*1]In re Doreen Nash, Petitioner-Appellant,

v

The Board of Education of the City School District of the City of New York, et al., Respondents-Respondents.




Richard E. Casagrande, New York (Keith J. Gross of counsel),
for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Susan B.
Eisner of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Marilyn Shafer, J.), entered November 10, 2009, which denied the petition seeking to annul respondents' determination terminating petitioner's probationary employment as a school secretary and to direct respondents to reinstate her employment with back pay and interest, and granted respondents' cross motion to dismiss the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner's probationary employment was terminated based on an "Unsatisfactory" rating (U-rating) on her year-end performance review. To the extent that petitioner challenges the termination, this claim is time-barred, since a petition to challenge the termination of probationary employment must be brought within four months of the effective date of termination, during which time the termination is deemed to become final and binding, and a petitioner's pursuit of administrative remedies does not toll the four-month statute of limitations (see CPLR 217[1]; Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 767 [1988]; Matter of Strong v New York City Dept. of Educ., 62 AD3d 592 [2009], lv denied 14 NY3d 704 [2010]). Because the effective date of petitioner's termination was July 15, 2005, her petition, filed September 10, 2008, was untimely. The reconsideration of the matter by respondent Chancellor's committee did not amount to a "fresh look" at the merits so as to renew the running of the statute of limitations (Matter of Eldaghar v New York City Hous. Auth., 34 AD3d 326, 327 [2006], lv denied 8 NY3d 804 [2007]).

The proceeding, insofar as it challenges the U-rating, need not have been commenced within four months from the July 15, 2005 decision (see Matter of Andersen v Klein, 50 AD3d 296 [2008]). Contrary to respondents' contention, petitioner did not fail to exhaust her administrative or contractual remedies so as to bar this claim, as the committee's and the [*2]Chancellor's review of the termination necessarily encompassed a review of the U-rating (see CPLR 7801[1]; Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 8, 2011

CLERK