December 16, 2010

The statute of limitations for initiating a lawsuit is not extended by the individual’s pursuing his or her administrative remedies

The statute of limitations for initiating a lawsuit is not extended by the individual’s pursuing his or her administrative remedies
Kahn v New York City Dept. of Educ., 2010 NY Slip Op 09168, decided on December 14, 2010, Appellate Division, First Department

Leslie Kahn, a probationary social worker, was given an unsatisfactory evaluation and was not given a “denying her a Certification of Completion of Probation.” She was then terminated from her position and advised that she was entitled to administrative review under the relevant collective bargaining agreement.

Kahn filed an administrative appeal. An administrative hearing was held. The denial of a “Certification of Completion of Probation” was affirmed and Kahn initiated a lawsuit challenging the determination.

Although Kahn had not filed a “notice of claim” pursuant to Education Law §3813(1), the Appellate Division said that such an omission was not a bar to her action, which was equitable in nature. The court explained that a notice of claim is only required “when money damages are sought, citing Ruocco v Doyle, 38 AD2d 132.

Overcoming this hurdle, however, did not result in the court's considering the merits of Kahn's claim as the Appellate Division then found that her action was time-barred because she filed her Article 78 petition after the statute of limitations had expired.

The court said that a petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination, citing CPLR §217[1]. Significantly, the decisions points out that the controlling statute of limitations is not extended by the individual’s pursuit of administrative remedies.

Assuming that Kahn had initiated a timely Article 78 action and not filed her administrative appeal, the New York City Department of Education would probably have moved to dismiss her petition on the ground that “Kahn had failed to exhaust her administrative remedy.” Presumably the court would have agreed and dismissed her petition.

To avoid such a result, where there is an administrative remedy available, it seems that the aggrieved party should make certain to both file a timely administrative appeal and a timely Article 78 petition.

Kahn also claimed that the Department’s action deprived her of certain civil rights in violation of the Federal Civil Rights Act of 1871, 42 USC §1983.

The Appellate Division said that a claim based on an alleged violations of 42 USC §1983 requires that the proponent show that he or she was deprived of a property or liberty interest without due process of law. However, said the court, a probationary teacher does not have a property right in his or her position nor did the procedure set out in the collective bargaining agreement create such a property interest.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09168.htm

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