ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

January 06, 2016

Terminated after a disciplinary hearing, employee’s Article 78 petition dismissed because he failed to file timely Education Law §3813(1) notice of claim


Terminated after a disciplinary hearing, employee’s Article 78 petition dismissed because he failed to file timely Education Law §3813(1) notice of claim  
Idolor v Board of Coop. Educ. Servs. of Nassau County, 2015 NY Slip Op 09284, Appellate Division, Second Department

The Board of Cooperative Educational Services of Nassau County [BOCES] filed disciplinary charges against one of its employees, Lucky Idolor. The disciplinary hearing officer found that Idolor was guilty of misconduct and insubordination. BOCES adopted the findings of the hearing officer and dismissed Idolor from his position.

Idolor filed a CPLR Article 78 petition challenging BOCES’ action. BOCES, contending that Idolor petition was untimely because he had failed to comply with the notice of claim requirements set out in Education Law §3813(1), moved to have Idolor’s petition as untimely. Supreme Court granted BOCES’ motion and dismissed Idolor’s petition, whereupon Idolor appealed the Supreme Court’s ruling to the Appellate Division.

The Appellate Division sustained the lower court’s ruling, explaining that the filing of the §3813(1) notice of claim within three months after Idolor’s claim arose was a condition precedent to his bringing a timely Article 78 action, an action in which he petitioned the court for both [1] equitable relief and [2] for damages.

In Sephton v Board of Education of the City of New York, 99 AD2d 509, [motion for leave to appeal denied, 62 NY2d 605], the Sephton court noted that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights.” However, the court said that the Sephton plaintiffs were seeking “to recover back pay due to the allegedly improper restructuring of their salaries,” and “[s]uch a claim seeks vindication of private rights" and a [timely §3813(1)] notice of claim was a condition precedent to the maintenance of their action seeking to recover back pay. Again, in Mills v County of Monroe, 59 NY2d 307, the court ruled that where a plaintiff seeks private relief, damages, or reinstatement to his or her former position, in this instance for alleged unlawful employment discrimination in violation of the Executive Law, the filing of a timely notice of claim was a condition precedent to Mills' maintaining the lawsuit.


However, a timely appeal to the Commissioner of Education constitutes a “functional” notice of claim required by Section 3813(1) of the Education Law as the court ruled in Mennella v Uniondale UFSD, App. Div., 2nd Dept., 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602.
 
N.B. Another “statute of limitations” to be remembered: §3020-a.5.a of the Education Law, Appeal, provides as follows: “a. Not later than ten days after receipt of the hearing officer's [§3020-a ] decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seventy-five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding.” Further, subdivision b of §3020-a.5 provides “b. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.”

The decision is posted on the Internet at:

 _____________________

The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html
 _____________________
  

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com