Matter of Portnoy v Board of Educ. of City School Dist. of City of N.Y.

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Matter of Portnoy v Board of Educ. of City School Dist. of City of N.Y. 2008 NY Slip Op 31933(U) July 3, 2008 Supreme Court, New York County Docket Number: 0111583/2007 Judge: Joan A. Madden Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 71912008 [* 1 ] c SUPREME COURT OF THE STATE OF NE YORK - NEW YORK COUNTY + &c, b /I.W.LL4-4 Index Number : I 1583/2007 I PRESENT: PART 1 PORTNOY, SYLVIA 8 - vs BOARD OF EDUCATION z -7 MOTION ,BATE Sequence Number : 001 MOTION SEQ. NO. ARTICLE 78 .. .. MOTION CAL. NO. CPS T h e following-papers, numbered 1 to were read on this rnotlon to/* A \b . -. . . 5 PAPER$ NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits .. Answering Affidavlts ... - Exhlbits - - Replying Affidavits - - - 1 Yes Cross-Motion: ' \ 0 No 9 c05s Upon the foregolng papers, it is ordered that thismotion \ aodh J . S. C. INAL DISPOSITION NON-FINAL DISPOSITION -. . . [* 2 ] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK, IAS PART 11 In the Matter of the Application of SLYVIA PORTNOY Index No. Petitioner, 111583/07 -againstTHE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK; and JOEL I. KLEIN, as Chancellor of the City School of the City of New York, ei L R 4 Respondents. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ JOAN A . MADDEN, J.: _ _ _ _ _ % &+&% _ l _ l d d O92OU& b _ _ ortnoy : In this Article 78 proceeding, petitioner r challenges the determination of respondents the Board.@ Education of the City School District of the City of New York ( D O E ) and Joel I. Klein, Chancellor of the City School of the City of New York, placing her on an inquiry/ineligible list for re-employment. Respondents cross-move to dismiss the petition on statute of limitations grounds. For t h e reasons below, the cross-motion is granted. Backq round Petitioner commenced employment with DOE in 1958 and was a tenured employee until her retirement in July 2003. During the 1999-2000 school year, petitioner was given an unsatisfactory rating based on substantiated charges of corporal punishment. The following facts are based on t h e allegations in the petition, which for the purposes of deciding t h e cross-motion must be accepted as true, as well as documentary evidence and affidavits submitted by the parties. 1 [* 3 ] Petitioner appealed the rating and lost. As a result, in 2001, petitioner was placed on the DOE S inquiry/ineligible list (hereinafter ineligible list ), which would preclude her from becoming re-employed by DOE after leaving its employment. In June 2003, petitioner discovered that her name was on the ineligible list and, in July 2003, petitioner retired. Shortly after learning that her name was placed on the ineligible list, petitioner filed for a Circular 31 or C-31 hearing to challenge t h e determination of the DOE and appeared at the Office of Appeals and Reviews of the DOE on May 27, 2004. The hearing examiner informed petitioner that he could not proceed with the C-31 hearing because the proceeding is unavailable to teachers with tenure at the time they are placed on t h e ineligible list. He also informed petitioner that since she was tenured, he believed that h e r name was on the list in error. As a result of this statement, petitioner believed that her name would be removed from the ineligible list. Petitioner applied f o r a substitute teaching position with the DOE on April 25, 2007. At that time, petitioner was orally informed by respondents that her name was on the ineligible list and she was thus ineligible for a per-diem substitute teaching license. On July 19, 2007, petitioner filed a verified notice of claim pursuant to Education Law § 3813, alleging, integ u, that the refusal to grant her a per diem substitute teaching 2 [* 4 ] license was arbitrary, capricious, and rendered in violation of law and procedure. Petitioner filed this Article 78 proceeding on August 24, 2007 challenging her placement on the ineligible list. Respondents now cross-move to dismiss the petition on statute of limitations grounds, arguing that the four-month limitations period provided under CPLR 217 expired in October 2001, four months after petitioner received notice of the decision placing her on the ineligible list. In support of its position, respondents rely on the written appeal by petitioner of an unsatisfactory rating f o r the 1999-2000 achool year which she signed on June 27, 2000, a letter dated June 8, 2001 from the Board of Education of the City of New York alerting school officials of the denial of that appeal, and the affidavit of Andrew Gordon. U Mr. Gordon is the Director of Employee Relations for the New York City Department of Education's Division of Human Resources and is in charge of maintaining the ineligible list. Mr. Gordon states that it is not common practice to maintain hard copies of notification letters sent to those placed on the ineligible l i s t , but that petitioner was placed on the ineligible list on June 12, 2001 and was sent a letter informing her that she had been placed on the list on or about that date. Respondents alternately argue that even if petitioner did not receive notice of the determination placing her on t h e 3 [* 5 ] ineligible list until June 2003, as alleged in the petition, the proceeding is still untimely, since it was not commenced until four years after petitioner admittedly received such notice. Petitioner opposes the cross-motion, asserting that respondents have failed to produce any document that establishes notice t h a t petitioner was informed that she was placed on the ineligible list. Petitioner also asserts that the appeal of an unsatisfactory rating on the annual performance review for the 1999-2000 school y e a r does not constitute notice to petitioner that her name was placed on the ineligible liat. Petitioner further challenges Mr. Gordon's statement on t h e grounds that he was not an employee of the respondents at the time petitioner's name was placed on the ineligible list. Next, although petitioner admittedly received notice of her placement on the ineligible list in June 2003, she contends that respondents are estopped from asserting a statute of limitations defense. Specifically, petitioner argues that she justifiably relied on the statement of the hearing officer at the May 2 7 , 2004 hearing challenging her placement on t h e ineligible list that he believed petitioner's name to be on the list in e r r o r . In support of this position, petitioner submits the affidavit of Michael Grossman, an advocate for the United Federation of Teachers, Local 2 , American Federation of Teachers, AFL-CIO ("UFT") . Mr. Grossman's job responsibilities include representing UFT members at C-31 hearings, discontinuance [* 6 ] hearings, unsatisfactory rating appeals, and other employment matters between the UFT and the Board of Education of the City School District of the City of New York. Mr. Grossman accompanied petitioner to her C-31 hearing on May 27, 2004. Mr. Grossman states that he heard the statement by t h e hearing officer that petitioner's name was on the ineligible list in error. Mr. Grossman believed from this statement that petitioner's name would be removed from the ineligible list. Petitioner argues t h a t , based on t h e hearing officer's representation, t h e statute of limitations period did not begin to r u n until April 2 5 , 2007, when she was orally informed that she was denied a per diem substitute teaching license from DOE based on her placement: on the ineligible list. She further argues t h a t this proceeding was t h u s timely commenced on August 23, 2007, which is less t h a n four months after she received the April 25, 2007 notification. Discussion A challenge to an administrative determination must be commenced within the four-month statute of limitations period governing an Article 78 proceeding. Todrag v. C itv of New York 11 A.D.3d 383, 384 (1st Dep't 2 0 0 4 ) , Roufa 241 A.D.2d 865, 867 ( 3 d Dep't 2001). I v , Ithaca Col, 1. I The four-month period begins to r u n when the determination made by t h e agency becomes final and binding, I. d A administrative determination becomes n final and binding when petitioner receives notice of t h e 5 [* 7 ] determination and is aggrieved by it. 175 A.D.2d Robertson v, Bd. 0 f E d t , 836, 837 ( 2 d Dep't 1991); Lubin v. B d , 0f Ed, I 60 N.Y.2d 9 7 4 (19831, cex t denied, 469 U.S. 823 .(1984). A request for reconsideration does not toll or revive the statute of limitations, even when the agency reconsiders its determination or negotiates with petitioner regarding modification of the administrative decision. a; Janke v. Cmty. Sch. Bd. Of Cmtv. Sch. Dist. No. 19, 186 A.D.2d 190, 1 9 3 (2d Dep't 1992). Likewise, the statute of limitations generally will not be tolled where petitioner seeks a procedure that subsequently turns out to be unavailable, such as the C-31 hearing procedure the petitioner sought in this case. Montella v. S a f i r , 290 A.D.2d 2 6 1 , 262 (' Dep't 2002). 1' Petitioner does not dispute that s h e was placed on the ineligible liHt in 2001 following her unsuccessful appeal of the unsatisfactory rating she received for the 1999-2000 school year, or that she received notice of her placement on the ineligible l i s t in June 2003. Petitioner argues, however, t h a t the proceeding is timely, and respondents are estopped from arguing otherwise, based on the representation of the hearing officer that she was placed on the ineligible list in error. A party may invoke estoppel against a government agency when a manifest injustice has resulted from actions taken in its governmental capacity. Allen v , Bd. o f Educ. of Union Fre e 6 [* 8 ] S c k w l pist. No. 20, 168 A.D.2d 403 (2d Dep't 1990)' SDDeal, dismissed, 77 N.Y.2d 934 (1991). The agency's conduct must induce justifiable reliance by a party who then changed position to his or her detriment. Branca v. B d . Of E d u c , , $achem Cent. School Dist. at Holbrook, 239 A.D.2d 494, 496(2d Dep't 1997)For a government agency to be estopped from using a statute of limitations defense, an aggrieved party must prove that t h e government engaged in fraud, misrepresentation, deception, or similar affirmative misconduct that: party relied upon to its detriment. Yassin v. Sarabu, 284 A.D.2d 531 (2d Dep't 2001), d i a m i ~ ~ a d98 N.Y.2d 645 (2002); 4ee, , Associates, Inc. v. Spit- e , q , , Academy I. v Street , 44 A.D.3d 592 (1st Dep't 2007) (alleged actions of Attorney General in assuring plaintiffs' counsel the amendment to offering plan at issue would be addressed in near f u t u r e did not rise to t h e level of affirmative wrongdoing so as to equitably estop Attorney General from asserting the statute of limitations defense). In order to invoke estoppel to preclude the assertion of a statute of limitations defense, there must be evidence that the misrepresentation was deliberate, and here the record iB devoid of such evidence. Yessin, 284 A.D.2d at 531. Furthermore, the hearing officer's statement is not a sufficient promise to invoke promissory estoppel, since he was not authorized to promise petitioner her name would be taken off the ineligible list. Carson v. New York C itv Dep't of [* 9 ] Sanitatipn, 271 A.D.2d 380 (1st Dep't 2000) (holding that if an agent of the government is not authorized to give a promise the agency is not bound by it). In addition, to establish promissory estoppel, petitioner must show that the promise she relied on was clear and unambiguous. Service@, No. Clifford R. Gray, Inc. v. LeChase C w is t y . 503270, slip op. 4249 at 2 ( N . Y . App. Div. 3d Dep't May 8, 2008); Roufaiel, 241 A . D . 2 d at 869. Here, a statement by a hearing officer who refused to decide on petitioner's case that he believed petitioner's name was on the ineligible list in error is insufficient to amount to a clear and unambiguous promise that h e r name would be removed from the list. Finally, the c o u r t notes that petitioner failed to take further steps to assure her name was taken off t h e ineligible list in the approximately three years between t h e date of the hearing and the time she was orally denied a position by DOE. Under these circumstances, when a good faith inquiry would have disclosed the true facts, petitioner may not invoke the doctrine of estoppel. Parkview Aesoc . v. City of New York , 71 N.Y.2d 274, a D D e a 1 dismissed, cert deni d , 488 U.S. 801 (1988). Accordingly, as respondents are not estopped from asserting the four month statute of limitations period which began to run, at the latest, in June 2003, when petitioner received notice that she waa placed on t h e ineligible list, the petition must be dismissed as untimely. Conclusion 8 [* 10 ] Accordingly, it is ORDERED that the cross-motion to dismiss is granted, and it is f u r t h e r ORDERED that the Clerk is directed to e n t e r judgment tion. 1 J.S.C 9

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