IN RE: Laura CAMPBELL–LUI (2022)

Judgment (denominated an order), Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about June 9, 2021, denying the amended petition to annul the determination of respondent New York City Department of Education (DOE), dated March 13, 2019, which denied petitioner's request to withdraw her resignation, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner's attempt to file an “amended” article 78 petition two years after filing her initial petition, without first obtaining leave to amend or a stipulation to any amendment, was improper (see CPLR 3025[b] and 7804[d];  see also Matter of Gomez v. Fischer, 101 A.D.3d 1195, 1196, 955 N.Y.S.2d 671 [3d Dept. 2012]).  The amended petition is also untimely, as petitioner failed to file it within four months of DOE's decision to deny her request to withdraw her resignation (see CPLR 217[1];  see Kahn v. New York City Dept. of Educ., 79 A.D.3d 521, 915 N.Y.S.2d 26 [2010], affd 18 N.Y.3d 457, 940 N.Y.S.2d 540, 963 N.E.2d 1241 [2012]).  Her claim that the initial filing tolled the statute of limitations is also unavailing because the time to commence an article 78 proceeding is not extended by her eventual pursuit of administrative remedies (see id. at 522, 915 N.Y.S.2d 26;  see also Matter of Mendez v. New York City Dept. of Educ., 128 A.D.3d 584, 584, 10 N.Y.S.3d 59 [1st Dept. 2015]).

In any event, the petition fails because petitioner did not exhaust her administrative remedies prior to bringing this proceeding, as required by her collective bargaining agreement (see Mendez at 584, 10 N.Y.S.3d 59;  Sumner v. Hogan, 73 A.D.3d 618, 619, 901 N.Y.S.2d 236 [1st Dept. 2010]).