Opinion
5271 Index 100587/16
12-28-2017
In re Christine BUFFOLINO, Petitioner–Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent–Respondent.
Christine Buffolino, appellant pro se. Zachary W. Carter, Corporation Counsel, New York (Barbara Graves–Poller of counsel), for respondent.
Christine Buffolino, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York (Barbara Graves–Poller of counsel), for respondent.
Acosta, P.J., Richter, Mazzarelli, Andrias, Gesmer, JJ.
Order and judgment (one paper), Supreme Court, New York County (Shlomo Hagler, J.), entered April 6, 2017, denying the petition to annul respondent New York City Department of Education's (DOE) determination, which terminated petitioner's teaching position effective December 14, 2015, and dismissing this hybrid proceeding brought pursuant to CPLR article 78 and 42 USC § 1983, unanimously modified, on the law, to the extent of vacating the dismissal of the 42 USC § 1983 claim and converting the proceeding into a plenary action, and otherwise affirmed, without costs.
This action arises out of DOE's acceptance of a resignation letter, dated December 2, 2015, that petitioner is alleged to have submitted, resigning her position as a teacher, effective December 14, 2015. Petitioner denies having sent the letter to the Superintendent of the school and on December 17 and 18, 2015, sought to withdraw and/or rescind the letter.
The article 78 petition was properly dismissed as premature, since it was brought prior to the conclusion of the grievance procedure set forth in the collective bargaining agreement entered into between petitioner's union and her employer (see Matter of Gil v. Department of Educ. of the City of N.Y., 146 A.D.3d 688, 46 N.Y.S.3d 55 [1st Dept. 2017] ; Matter of Sapadin v. Board of Educ. of City of N.Y., 246 A.D.2d 359, 360, 666 N.Y.S.2d 421 [1st Dept. 1998] ).
However, no extraordinary circumstances support the court's sua sponte dismissal of the entire proceeding (see Grant v. Rattoballi, 57 A.D.3d 272, 273, 869 N.Y.S.2d 53 [1st Dept. 2008] ; Myung Chun v. North Am. Mtge. Co., 285 A.D.2d 42, 46, 729 N.Y.S.2d 716 [1st Dept. 2001] ). In the absence of a motion to dismiss the 42 USC § 1983 claim, conversion of this proceeding to a plenary action is warranted (see CPLR 103[c] ; Thornton v. New York City Bd./Dept. of Educ., 125 A.D.3d 444, 445, 3 N.Y.S.3d 339 [1st Dept. 2015] ).