Labor & Employment Law

Request for reconsideration does not stop the statute of limitations from running

By Harvey Randall, Esq.

Request for reconsideration does not stop the statute of limitations from running
Tamarkin v New York City Dept. of Educ., 44 A.D.3d 502, Appellate Division, First Department

It appears that on September 2, 2003, after working as an interim acting assistant principal from November 5, 2001 to September 1, 2003, Susannah Tamarkin was reinstated to her prior position as a teacher. Tamarkin, however, claimed that she was not given a ?salary credit? for the time she worked as an assistant principal. Such credit would give her a higher salary as a teacher.

In response to Tamarkin?s complaint, the New York City?s Department of Education?s Division of Human Resources told her to file an application for such salary credit. Tamarkin did so.

Human Resources issued a decision on August 19, 2004 rejecting her claim Accordingly, the statute of limitations for perfecting an Article 78 judicial challenge to the Division?s determination commence to run on that date.

However, Tamarkin wrote to the Chancellor concerning the issue. The Appellate Division said that her letter was, in effect, a request for reconsideration and thus did not extend the four-month period ?since it does not appear that [Tamarkin claim] was entitled to further consideration or [the Department] led her to believe that she was.?

When Tamarkin ultimately filed her Article 78 petition with the court, it was ruled untimely. As the Appellate Division noted, the four-month statute of limitations began to run on August 19, 2004. Since Tamarkin initiated her lawsuit more than four months after receiving the Department?s ?final determination,? the Appellate Division affirm the dismissal of her Article 78 action as time-barred.

The court also rejected Tamarkin?s argument the four-month statute of limitations did not apply in her case because the Department?s denial of the salary credit she claimed is due her is a ?continuing violation? of a statute, -- Education Law § 2588(4)(a). That, said the court, would be true only if the Department ?was under an absolute mandate to pay to [Tamarkin] the credits which she claims?. Here, however, the Appellate Division held that Tamarkin?s right to the credit ?depends upon some administrative or quasi-judicial determination concerning her status made by the board of education? i.e., whether she was appointed to the position of interim acting assistant principal, an element apparently not raised in this appeal.

Full post as published by New York Public Personnel Law on May 06, 2008 (boomark / email).