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October 02, 2020

Failure to satisfy procedural requirements bars considering the merits of a CPLR Article 78 petition challenging the termination of a probationary employee

The Petitioner [Teacher] initiated a CPLR Article 78 proceeding in which she challenged her dismissal from her employment as a probationary teacher. Supreme Court dismissed Teacher's Article 78 petition for a number of procedural reasons and Teacher appealed.

Supreme Court dismissed Teacher's petition after determining that Teacher had failed to exhaust her administrative remedies. The decision notes that with respect to the "ineffective" performance rating in her evaluation, her administrative appeal was still pending at the time she had filed her Article 78 petition. The Appellate Division sustained the Supreme Court ruling with respect to Teacher's failure to exhaust her administrative remedy.

Supreme Court had found that Teacher's challenge to the discontinuance of her probationary employment status was time-barred. The Appellate Division affirmed the Supreme Court's ruling concerning the issue of Teacher's failure to file a timely Article 78 petition, explaining that statute of limitations to challenge the decision to terminate her employment as a probationary employee expired on December 12, four months after the effective date of her termination the previous August 11.

Addressing Teacher's motion "to renew," the Appellate Division explained that such a motion must be based upon new facts, i.e., facts that were not offered on Teacher's prior motion "to renew" and that would change the prior determination. As Teacher presented no new relevant facts in the motion to renew she had submitted to Supreme Court, the Appellate Division affirmed Supreme Court's refusal to grant her motion to renew, opining that Teacher's motion to renew failed to meet this standard. 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05141.htm

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New York Public Personnel Law Blog Editor 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.
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