Requesting reconsideration of a final administrative decision does not serve to toll or extend the running of the controlling statute of limitations

The Petitioner [Plaintiff] in this CPLR Article 78 sought judicial review of the determination of the Fire District [District] denying the Plaintiff retiree health insurance benefits. The District opposed the petition, asserting, among other things, the affirmative defense of the statute of limitations.* The Supreme Court denied the petition as time-barred and dismissed the proceeding. Plaintiff appealed the court's ruling.

The Appellate Division affirmed the Supreme Court's ruling, explaining:

1. A proceeding pursuant to CPLR Article 78 must be commenced within four months after the administrative determination sought to be reviewed becomes final and binding upon the petitioner.

2. An administrative determination becomes final and binding when "the agency... reache[s] a definitive position on the issue that inflicts actual, concrete injury and ...  [the]  administrative action [becomes] available to the complaining party."**

3. A request for reconsideration of an administrative determination typically does not extend or toll the running of the statute of limitations or render the otherwise final determination non-final unless the agency's rules mandate reconsideration.***

Here, opined the Appellate Division, the District's determination denying the Plaintiff retiree health insurance became final and binding when Plaintiff's counsel received notice from the District's counsel via email.

Contrary to the Plaintiff's argument, the court ruled that the statute of limitations was not extended or tolled by the subsequent email from the District's counsel to the Plaintiff's counsel as the plain language of the email shows that the District's counsel's response was to Plaintiff's counsel's "request for reconsideration of a prior determination" and as such it did not serve to extend or toll the statute of limitations.

Accordingly, the Appellate Division agreed with the Supreme Court's decision to deny Plaintiff's petition as time-barred and dismiss Plaintiff's petition and affirmed the Supreme Court's judgment, with costs.

* A party seeking to assert the statute of limitations as a defense has the burden of establishing that the petitioner was notified of the determination more than four months before the Article 78 proceeding was commenced.

**See Matter of Zherka v Ramos, 173 AD3d 746.

***See Matter of Lubin v Board of Educ. of City of N.Y., 60 NY2d 974.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06268.htm

 

There are limits to the Commissioner of Education's jurisdiction to adjudicate administrative appeals submitted pursuant to Education Law §310

In this Education Law §310 appeal submitted to Interim Commissioner of Education Rosa the Petitioner challenged determinations of the New York State Department of Educations' Deputy Commissioner of Cultural Education [DCCE] and individual members of the Board of Regents of the University of the State of New York [BOR] concerning  a proposed deaccession* of certain items by the Town of Salem [Town]. In brief, Petitioner alleged that the DCCE and the BOR improperly approved the proposed deaccession of “selected furniture pieces” by the Georgi Museum, which is owned and operated by the Town.

Petitioner contended that the DCCE's and the BOE's approval of the deaccession "violated 8 NYCRR §3.27, the public trust doctrine and the State Administrative Procedure Act” and asked that Commissioner to declare such actions “void” and provide other relief in addition.

Commissioner Rosa dismissed Petitioner's appeal "for lack of jurisdiction." The Commissioner explained that court decisions indicated that Education Law §310 "deals throughout with the common schools and, inferentially ... does not invest the Commissioner with carte blanche appellate jurisdiction in all controversies involving the Education Law.”**

The Commissioner also noted that "[i]t is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by employees or officers*** of the State Education Department" and that such actions "can only be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules."

Similarly, said the Commissioner, a petitioner may not challenge an action of the BOR or its members in an appeal pursuant to Education Law §310, pointing out that the relevant portion of Education Law §310 provides that any party conceiving himself aggrieved "[b]y any ... official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same."

The Commissioner opined that although the language of Education Law §310(7) “could literally, and if it stood alone, embrace much more than the common school classifications of the first six subdivisions, the words ... do not stand alone, and ... are circumscribed and modified by the contextual words which precede and follow them”, citing Matterof Bowen v. Allen, 17 AD2d 12.

The bottom line: The Commissioner held that Education Law §310 provides no basis to review an alleged act or omission by the DCCE or by the BOR or its members.

* Deaccession is the official removing of an item from a public library, museum, or art gallery in order to sell it or otherwise dispose of it.

** See Matter of Board of Educ. of City School Dist. of City of Rome v. Ambach, 118 AD2d 932.

*** Although all public officers of the State are public employees, not all public employees of the State are public officers.

The decision is posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume60/d17935

 

School district audits release by the New York State Comptroller during the week ending November 6, 2020

On November 6, 2020 New York State Comptroller Thomas P. DiNapoli announced the following school district audits have been issued.

Click on the text in color to access the full report.

SusquehannaValley Central School District – Information Technology (Broome County)- School district officials did not establish adequate information technology (IT) controls to protect against unauthorized use, access and loss. District officials did not properly manage user accounts including periodically reviewing and disabling unneeded network user accounts. Auditors also determined district officials did not maintain accurate, complete and up-to-date hardware and software inventory. Officials did not ensure that computers were free from malicious software. In fact, two malicious software applications were installed on district computers. Sensitive IT control weaknesses were communicated confidentially to officials.

White Plains City School District – Financial Management (Westchester County) - The school board and district officials did not adopt realistic budgets or maintain reasonable levels of fund balance. However, reserves were generally funded at reasonable levels and within legal limits. The district’s fund balance over the past five years grew to $97.9 million, the equivalent of 43 percent of the district’s annual budget. Some appropriations were overestimated in previous budgets and continued to be overestimated. District officials made year-end transfers totaling about $29 million to reserves. The transfers were made to stay within the statutory surplus fund balance limit and resulted in a lack of transparency because the taxpayers were not informed of the amounts that would be added to the reserves during the fiscal year.

 

 

Penalty imposed following a disciplinary arbitration challenged

The petitioner [Teacher] in this action brought pursuant to CPLR Article 75 challenged the penalty imposed by the arbitrator - termination - following a disciplinary hearing. Supreme Court vacated the penalty portion of the disciplinary arbitration award and remanded the matter to the Board of Education [Board] for the imposition of a lesser penalty. The Board appealed the court's order.

The Appellate Division unanimously reversed the Supreme Court's ruling, on the law, reinstated the penalty imposed by the arbitrator and dismissed the Article 75 proceeding.

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, and other decisions, the Appellate Division opined that it did not find the penalty of termination of Teacher's employment shocking to one's sense of fairness "given the evidence of [Teacher's] pedagogical shortcomings, documented by supervisors and a peer evaluator, and his lack of improvement during two school years."

In particular, the court noted Matter of Russo v New York City Dept. of Educ., 25 NY3d 946, cert. denied 577 US 957, in which the termination of an Educator was sustained after three years of unsatisfactory performance ratings "notwithstanding [the educator's] 18 years of satisfactory teaching."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06349.htm.

 _______________

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Judicial review of arbitration awards is extremely limited

A detective [Plaintiff] applied for General Municipal Law §207-c line of duty disability  benefits. The Employer's claims manager denied Plaintiff's application as untimely. Ultimately the Plaintiff's Union [PBA] demanded that the matter be submitted to arbitration pursuant to the relevant provision set out in the controlling collective bargaining agreement [CBA] between the Employer and the PBA 

The arbitrator interpreted the disputed provisions of the CBA and found that the claims manager's denial of the application as untimely was not reasonable.

Employer then filed a CPLR Article 75 petition seeking a Supreme Court order vacating the arbitration award. PBA then cross-petitioned the court to confirm the award. The Supreme Court denied the Employer's petition and granted the PBA's cross petition. The Employer appealed the court's ruling.

Citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471and other decisions, the Appellate Division observed that "A court may vacate an arbitration award on the ground that the arbitrator exceeded his [or her] powers within the meaning of CPLR 7511(b)(1)(iii) only where the arbitrator's award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The court then explained that for the purposes of Article 75 an arbitrator "exceeds his or her powers ... if the award gives a completely irrational construction to the provisions in dispute and, in effect, makes a new contract for the parties."

The Appellate Division then opined that, contrary to the City's contention, "the arbitrator's interpretation of the CBA was not irrational, and did not effectively rewrite the agreement." Further, said the court, "the arbitrator did not exceed a specifically enumerated limitation on his authority by construing the CBA's terms in light of testimony as to the past practices of the [Employer] and the [PBA].

Agreeing with the Supreme Court's determination denying the Employer's petition to vacate the arbitration award and granting the PBA's cross petition to confirm the arbitration award, the Appellate Division affirmed the lower court's ruling and awarded the PBA "one bill of costs."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06254.htm