Supreme Court denied Plaintiff's amended petition seeking a court order annulling her former employer's denial of her request to withdraw her resignation and dismissed the proceeding brought pursuant to CPLR Article 78. Plaintiff appealed but the Appellate Division unanimously affirmed the lower court's ruling.
The Appellate Division explained Plaintiff had attempted to file an "amended" Article 78 petition two years after filing her initial petition without first obtaining a "leave to amend" was improper.
Further, said the court, Plaintiff's was petition untimely, as she "failed to file it within four months of the employer's decision to deny her request to withdraw her resignation.
Significantly, the Appellate Division noted the Plaintiff's claim that her initial filing tolled the statute of limitations was unavailing "because the time to commence an Article 78 proceeding is not extended by her eventual pursuit of administrative remedies," citing Matter of Mendez v New York City Dept. of Educ., 128 AD3d 584.
Noting the decision in Sumner v Hogan, 73 AD3d 618, the Appellate Division opined that Plaintiff's petition also failed because she did not exhaust her administrative remedies prior to initiating her Article 78 proceeding as required by the relevant collective bargaining agreement.
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