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Strong v. New York City Dep't of Education

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 26, 2009

IN RE YOLANDA STRONG, PETITIONER-RESPONDENT,
v.
THE NEW YORK CITY DEPARTMENT OF EDUCATION, RESPONDENT-APPELLANT.

Order and judgment (one paper), Supreme Court, New York County (Leland G. DeGrasse, J.), entered August 19, 2008, which granted petitioner's application to annul the determination of respondent Department of Education terminating petitioner's probationary employment as a per diem substitute teacher, unanimously reversed, on the law, without costs, the application denied and the petition dismissed. Appeal from order, same court (Walter B. Tolub, J.), entered August 19, 2008, which, insofar as appealed from, denied respondent's motion to reargue, unanimously dismissed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., Sweeny, Nardelli, Acosta, Richter, JJ.

406141/07

The proceeding is time-barred as it was commenced more than four months after respondent informed petitioner of its determination that she had violated its regulations by using force as a disciplinary technique, and that her name would "remain on the Ineligible Inquiry list, terminating [her] services with [respondent]" (CPLR 217[1]). Petitioner's time to commence the proceeding was not extended by her administrative appeal of this determination (Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 766-767 [1988]). In any event, respondent's finding that petitioner engaged in corporeal punishment is not arbitrary and capricious (see Von Gizycki v Levy, 3 AD3d 572, 574 [2004]), and the finding of the Unemployment Insurance Appeal Board that petitioner did not engage in corporeal punishment lacks preclusive effect (Labor Law § 623[2]; Wooten v New York City Dept. of Gen. Servs., 207 AD2d 754, 754 [1994], lv denied 84 NY2d 813 [1995]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090526

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