Opinion
2014-07-3
In re Patricia BENJAMIN, Petitioner–Appellant, v. The NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Respondents–Respondents.
Law Offices of Nicholas A. Penkovsky, P.C., New York (Nicholas A. Penkovsky of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Karen M. Griffin of counsel), for respondents.
Law Offices of Nicholas A. Penkovsky, P.C., New York (Nicholas A. Penkovsky of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Karen M. Griffin of counsel), for respondents.
Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered April 5, 2013, granting respondents' cross motion to deny the petition seeking to, among other things, remove petitioner's name from an “ineligible/inquiry list” maintained by respondent New York City Department of Education (DOE), and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Respondent DOE placed petitioner's name on the “ineligible/inquiry list” after her employment as a tenured school teacher was terminated following a disciplinary hearing pursuant to Education Law § 3020–a ( see Matter of Benjamin v. New York City Bd./Dept. of Educ., 105 A.D.3d 677, 964 N.Y.S.2d 139 [1st Dept.2013] ). Pursuant to a DOE Chancellor regulation, entry on the list is an automatic consequence of termination and indicates that petitioner is ineligible for reemployment with the DOE absent express approval by the Chancellor.
Supreme Court properly found that the proceeding is time-barred, since it was commenced more than four months after petitioner received notice of the DOE's determination ( see Matter of Biondo v. New York State Bd. of Parole, 60 N.Y.2d 832, 834, 470 N.Y.S.2d 130, 458 N.E.2d 371 [1983];see also CPLR 217 [1] ). Petitioner is deemed to be on notice of the DOE Chancellor regulation regarding automatic ineligibility for reemployment upon termination ( see Salamino v. Board of Educ. of the City School Dist. of the City of N.Y., 85 A.D.3d 617, 618–619, 926 N.Y.S.2d 461 [1st Dept.2011] ), and therefore she was “aggrieved” for the purposes of the running of the statute of limitations upon notice of her termination in April 2011 ( see Biondo, 60 N.Y.2d at 834, 470 N.Y.S.2d 130, 458 N.E.2d 371;see also Matter of Johns v. Rampe, 23 A.D.3d 283, 284–285, 808 N.Y.S.2d 18 [1st Dept.2005], lv. denied 6 N.Y.3d 715, 823 N.Y.S.2d 356, 856 N.E.2d 920 [2006] ). Accordingly, her commencement of this CPLR article 78 proceeding on or about October 23, 2012 was untimely.
The proceeding is also barred by the doctrine of collateral estoppel, insofar as petitioner seeks to re-litigate issues determined in a prior CPLR article 75 proceeding challenging the termination of her employment ( see Benjamin, 105 A.D.3d 677, 964 N.Y.S.2d 139). Indeed, petitioner's challenge to her placement on the ineligibility list is, for all intents and purposes, a challenge to her termination, which she already had a full and fair opportunity to litigate ( see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500–501, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984] ).
We have considered petitioner's remaining contentions and find them unavailing. FRIEDMAN, J.P., SWEENY, ANDRIAS, SAXE, KAPNICK, JJ., concur.