— A Antonio Jenkins, / Plaintiff–Appellant v. The New York City Department of Education, et al., Defendants–Respondents. (2011)

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Order, Supreme Court, New York County (Karen S. Smith, J.), entered August 12, 2010, which granted defendant's motion to dismiss the complaint, unanimously reversed, on the law, without costs, the motion denied, the complaint reinstated, the plenary action converted to an article 75 proceeding, and the matter remanded for further proceedings.   Appeal from order, same court (Geoffrey D. Wright, J.), entered February 2, 2011, which denied plaintiff's motion to restore the action to the calendar, unanimously dismissed, without costs, as moot.

In granting defendants' motion to dismiss, the motion court found that plaintiff's claims are time-barred because the complaints filed in this consolidated action were not filed within 10 days of the arbitrator's determination as required by Education Law § 3020–a(5).   However, plaintiff commenced the action before the arbitrator's ruling was issued.   Accordingly, the prudent course would have been to convert the instant action to an article 75 proceeding and to consider defendants' alternative bases for dismissal (see e.g. Scaduto v. DT Indus., 266 A.D.2d 149 [1999];  Broderick v Board of Educ., Roosevelt Union Free School Dist., 253 A.D.2d 836 [1998], lv denied 93 N.Y.2d 802 [1999];  CPLR 103[c] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK