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Statute of limitations not stayed when pursuing another remedy

Statute of limitations not stayed when pursuing another remedy
Levine v Board of Education, 272 AD2d 328

Sometimes an individual will file a grievance in accordance with the grievance procedure set out in a collective bargaining agreement rather than immediately initiate a lawsuit on the assumption that he or she can file the lawsuit later.

The Levine case is another example of the difficulties an individual may encounter if he or she does not take the steps necessary to protect his or her right to litigate the issue.

The New York City Board of Education terminated Martin Levine from his position as laboratory specialist. When he later attempted to challenge his dismissal by filing a petition pursuant to Article 78 of the Civil Practice Law and Rules, he found that he was time barred.

Levine?s problem: he had filed a contract grievance disputing his termination under the assumption that filing a grievance would stop the running of the Statute of Limitations for the purposes of his filing an Article 78 petition until the conclusion of the grievance procedure and the arbitrator issued a final determination.

Levine?s assumption proved to be incorrect, as the Appellate Division quickly pointed out.

Affirming the dismissal of his petition by State Supreme Court William J. Garry as untimely, the Appellate Division set out the following factors as basic to individual litigating an issue initially submitted for adjudication under a grievance procedure:

1. An Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding.

2. Where, as in Levin?s case, a review of an administrative decision is sought, the determination, for the purposes of bringing a timely Article 78, becomes final and binding on the date that the termination of individual?s employment becomes effective.

3. The invocation of an administrative grievance procedure in accordance with a Taylor Law agreement does not stop the running of the Statute of Limitations.

Levine could probably have avoided this problem by filing an Article 78 petition within the four-month Statute of Limitations period even though a final determination on his grievance had not yet been made.

Full post as published by New York Public Personnel Law on February 10, 2011 (boomark / email).