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Appealing an administrative decision as provided in a CBA does not toll the Statute of Limitations for filing an Article 78 action

Appealing an administrative decision as provided in a CBA does not toll the Statute of Limitations for filing an Article 78 action
Pak v New York City Dept. of Educ., 2009 NY Slip Op 50154(U), Decided on February 2, 2009, Supreme Court, Kings County, Justice Martin Schneier [not officially reported]

Kifan Pak, a probationary teacher, was told that he would be terminated from his postion effective February 28, 2007. Pak then filed an administrative appeal but his dismissal was ultimately sustained. Pak was advised of this determination by a letter dated September 11, 2007.

Pak commenced an Article 78 proceeding challenging his dismissal. The Board of Education, in response to his petition, filed a motion to dismiss Pak?s petition as untimely.

According to the decision, after receiving the letter dated February 21, 2007 advising him that he would terminated effective February 28, 2007, Pak filed an administrative appeal pursuant to the collective bargaining agreement [CBA] between the Board of Education and Pak collective bargaining representative. An administrative hearing was subsequently held and on January 15, 2008 Pak was advised that his appeal was denied.

The next day Pak initiated an Article 78 action to vacate the decision.

Justice Martin Schneier granded the Board?s motion to dismiss Pak petition as untimely.

An Article 78 proceeding challenging an administrative decision, said the court, 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." In this instance the statute of limitations commenced running when Pak was initially told that he would be terminated effective February 28, 2007.

Justice Schneier ruled that the fact that Pak was able to avail himself of ?the internal administrative review of a final determination to terminate a probationary teacher as provided for in the teacher's union contract? did not toll or extend the four months limitation period because this is only a procedural contractual right, not a constitutional or statutory right.
Here, said the court, the decision by the Board of Education to terminate Pak's probationary teacher's services on February 28, 2007, constituted the final decision of the matter.

Accordingly, the four months statute of limitations began to run on February 28, 2007, the date of petitioner's final termination, and Pak was required to commence this proceeding on or before June 28, 2007. Thus his initiating his lawsuit on January 15, 2008, was untimely and the proceeding is time-barred. under CPLR 217.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_50154.htm

Full post as published by New York Public Personnel Law on February 09, 2009 (boomark / email).