Opinion
2013-03-5
Phyllis Muriel STEPPER, Plaintiff–Appellant, v. The DEPARTMENT OF EDUCATION OF the CITY OF NEW YORK, et al., Defendants–Respondents.
Law Offices of Stewart Lee Karlin, New York (Stewart Lee Karlin of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for respondents.
Law Offices of Stewart Lee Karlin, New York (Stewart Lee Karlin of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for respondents.
TOM, J.P., MAZZARELLI, SAXE, DeGRASSE, JJ.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered June 27, 2011, which granted defendants' motion to dismiss the complaint, unanimously modified, on the law, to deny the motion with respect to the 2008–2009 rating of “unsatisfactory,” and otherwise affirmed, without costs.
The motion court correctly determined that the City of New York was an improper party to the action ( see e.g. Perez v. City of New York, 41 A.D.3d 378, 837 N.Y.S.2d 571 [1st Dept. 2007], lv. denied10 N.Y.3d 708, 859 N.Y.S.2d 393, 889 N.E.2d 80 [2008] ). The motion court also correctly determined that to the extent plaintiff challenged the unsatisfactory rating she received following the 2007–2008 school year, those allegations were time-barred (Education Law § 3813[2–b] ). However, plaintiff's claim related to her unsatisfactory rating for the 2008–2009 school year did not accrue until she received a final decision affirming the rating, on June 28, 2010, from the Interim Acting Director ( see Matter of Nash v. Board of Educ. of the City School Dist. of the City of N.Y., 82 A.D.3d 470, 471, 918 N.Y.S.2d 94 [1st Dept. 2011], affd. 18 N.Y.3d 457, 940 N.Y.S.2d 540, 963 N.E.2d 1241 [2012]; Matter of Andersen v. Klein, 50 A.D.3d 296, 297, 854 N.Y.S.2d 710 [1st Dept. 2008] ). Plaintiff commenced the action within one year of that date, thus satisfying the statute of limitations ( seeEducation Law § 3813[2–b] ). Further, plaintiff filed a notice of claim within three months of June 28, 2010. Accordingly, we reject the Department of Education's position that, to the extent plaintiff sought to challenge the unsatisfactory rating she received in 2009, those allegations are barred as a result of her failure to file a timely notice of claim (Education Law § 3813[1] ).
The Decision and Order of this Court entered herein on September 27, 2012 is hereby recalled and vacated ( seeM–5115, 2013 WL 791359 decided simultaneously herewith).