January 29, 2021

CPLR Article 78 petition dismissed as untimely, barred by the Doctrine of Res Judicata and barred by the Doctrine of Collateral Estoppel

Supreme Court rejected the CPLR Article 78 action filed by the Petitioner [Plaintiff] again seeking a court order annulling the decision of the New York City Department of Education [DOE] terminating Petitioner's employment.

Plaintiff had challenged her being appointed as a probationary employee by DOE upon her reinstatement to a position with the agency in 2009 after she had been terminated from her from her position in 2010. Plaintiff contending that she had attained tenure by estoppel* and thus could be removed from her position only after "notice and hearing" pursuant to the controlling disciplinary procedure and being found guilty of one or more of charges filed against her.

Supreme Court, considering a number of procedural issues, held that Plaintiff's instant Article 78 petition was [1] untimely, [2] barred by the Doctrine of Res Judicata and [3] barred by the Doctrine of Collateral Estoppel, dismissed the proceeding. 

As to the basis underlying the Supreme Court's rulings on these procedural matters:

1. The commencement of an action at law is deemed "untimely" if the required petition or similar instrument is not filed with the judicial or quasi-judicial tribunal having jurisdiction within the period of time specified by the relevant law, rule or regulation or, in some instances, the terms of a collective bargaining agreement negotiated pursuant to Article 14 of the New York State Civil Service Law, the so-called "Taylor Law";

2. The Doctrine of Res Judicata bars considering claims that could have been advanced in an earlier judicial or quasi-judicial proceeding in the course of a subsequent litigation; and

3. The Doctrine of Collateral Estoppel providesthat when an issue of fact has once been determined by a judicial or quasi-judicial body of competent jurisdiction the determination is conclusive as to the controverted issues and cannot again be litigated by the same parties in any future litigation.

Plaintiff appealed the Supreme Court's ruling. The Appellate Division, however,  unanimously affirmed the Supreme Court's decision, explaining:

a. Plaintiff's challenge with respect to her probationary status upon reinstatement by DOE in 2009 and the discontinuance of her employment under color of her being a "probationary employee" in 2010 was untimely and to the extent Plaintiff submitted a renewed challenge against DOE in 2015 concerning such action by DOE, it was similarly barred; and

b. Supreme Court correctly determined that the instant proceeding was barred by res judicata and collateral estoppel as Plaintiff had asserted claims arising from her reinstatement and subsequent discontinuance from her position by DOE in actions that raised the same issue with respect to her allegation that she had attained "tenure by estoppel" in two actions she had brought in federal court, one in 2011 and a second in 2013, and another such action she brought in state court in 2015. 

* * Tenure by estoppel, also referred to as tenure by acquisition, tenure by default, or tenure by inaction, results "by operation of law" in the event the appointing authority does not lawfully terminate the probationary employee on or before the last day of the individual's original, or extended, probationary period.

Click HEREto access the Appellate Division's ruling.

 

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