IN RE: Marisabel NOVILLO (2005)

Appeal from a judgment of the Supreme Court (O'Brien III, J.), entered April 23, 2004 in Madison County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

Petitioner, a Venezuelan citizen, was a tenured foreign language teacher in respondent Madison Central School District.   On April 10, 2003, the District charged her, pursuant to Education Law §§ 3012 and 3020-a, with immoral conduct, neglect of duty, conduct unbecoming a teacher, and “other just causes for disciplinary action.”   The charges were later amended to include insubordination and neglect of duty, grounded upon petitioner's failure to reverify her visa status.   After four days of hearings, during which numerous witnesses testified, the District withdrew specification 4.6, which would have authorized, as a separate ground for termination, petitioner's lack of an appropriate visa or other legal documentation to enable her to work for the District.   The Hearing Officer found petitioner guilty of conduct unbecoming a teacher and neglect of duty, but not guilty of immoral conduct.   As to the charge concerning her visa status, the Hearing Officer determined that while the District did establish insubordination, the majority of the remaining specifications were dismissed.   Although the District requested termination, the Hearing Officer imposed a one-month unpaid disciplinary suspension.   Neither party appealed.

Petitioner's attorney was thereafter informed that the District would be recommending to respondent Board of Education of Madison Central School District, at its October 9, 2003 meeting, that petitioner's services be terminated because of “her status as a non-citizen without the requisite visa.”   Petitioner attended that meeting and was present when the Board voted to terminate her services.   By an October 16, 2003 letter, petitioner was formally advised of that termination.   On January 15, 2004, she served a notice of claim on the District and, on February 17, 2004, commenced this CPLR article 78 proceeding alleging noncompliance with Education Law § 3020-a.   Respondents sought dismissal on timeliness grounds and Supreme Court agreed.   Petitioner appeals.

Education Law § 3020(1) recognizes that a tenured teacher has a constitutionally protected interest in his or her right to continued employment which cannot be deprived without due process.  Education Law § 3020-a, and the regulations promulgated thereunder, “attempt to harmonize the method of removing tenured teachers with the dictates of procedural due process” (Matter of Abramovich v. Board of Educ. of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 N.Y.2d 450, 454, 414 N.Y.S.2d 109, 386 N.E.2d 1077 [1979], cert. denied 444 U.S. 845, 100 S.Ct. 89, 62 L.Ed.2d 58 [1979] ).   In accordance with Education Law § 3020-a, petitioner, as a tenured teacher, was entitled to, among other things, timely written notice specifying the charges against her and an opportunity to challenge those charges at a hearing (see Education Law § 3020-a[2];  see also Matter of Abramovich v. Board of Educ. of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, supra at 454, 414 N.Y.S.2d 109, 386 N.E.2d 1077;  Matter of Soucy v. Board of Educ. of N. Colonie Cent. School Dist. No. 5, 41 A.D.2d 984, 985, 343 N.Y.S.2d 624 [1973], appeal dismissed 33 N.Y.2d 653, 348 N.Y.S.2d 978, 303 N.E.2d 704 [1973] ).   Petitioner sought to challenge her termination on that basis.   To do so, she was required to timely commence this proceeding (see Matter of Bargstedt v. Cornell Univ., 304 A.D.2d 1035, 1036-1037, 757 N.Y.S.2d 646 [2003];  Matter of Turner v. Bethlehem Cent. School Dist., 265 A.D.2d 640, 641, 696 N.Y.S.2d 266 [1999] ).   Such special proceeding “must be commenced within four months after the determination to be reviewed becomes final and binding” (CPLR 217[1];  see e.g. Matter of Scott v. City of Albany, 1 A.D.3d 738, 739, 766 N.Y.S.2d 650 [2003];  Matter of American Tr. Ins. Co. v. New York State Dept. of Motor Vehs., 305 A.D.2d 840, 841, 762 N.Y.S.2d 427 [2003] ).   That is, when “it definitively impacts and aggrieves the party seeking judicial review” (Matter of Scott v. City of Albany, supra at 739, 766 N.Y.S.2d 650;  see New York City Off Track Betting Corp. v. State of New York Racing & Wagering Bd., 196 A.D.2d 15, 18, 608 N.Y.S.2d 328 [1994], lv. denied 84 N.Y.2d 804, 617 N.Y.S.2d 138, 641 N.E.2d 159 [1994] ).

Although petitioner contends that the finality of the Board's termination accrued upon her receipt of the written confirmation, her affidavit and testimony belie that claim.   Not only did she argue against her termination at the Board meeting, she also witnessed the actual vote.   Since “oral notification is sufficient to commence the running of the statute of limitations” (Matter of Scott v. City of Albany, supra at 739, 766 N.Y.S.2d 650) when the determination “is unambiguous and its effect certain” (Matter of Edmead v. McGuire, 67 N.Y.2d 714, 716, 499 N.Y.S.2d 934, 490 N.E.2d 853 [1986];  see Cahill v. New York State Div. of State Police, 304 A.D.2d 971, 972, 756 N.Y.S.2d 912 [2003] ), we agree that the District properly established that the statutory period commenced when the final vote of termination was taken in petitioner's presence (see Matter of Feldman v. New York State Teachers' Retirement Sys., 14 A.D.3d 769, 770, 788 N.Y.S.2d 230 [2005];  Matter of Scott v. City of Albany, supra at 739, 766 N.Y.S.2d 650;  Matter of Bargstedt v. Cornell Univ., supra at 1036-1037, 757 N.Y.S.2d 646;  Matter of Turner v. Bethlehem Cent. School Dist., supra at 641, 696 N.Y.S.2d 266).   For this reason, the proceeding was properly dismissed on timeliness grounds.¹

ORDERED that the judgment is affirmed, without costs.

FOOTNOTES

1.   In reaching this determination, we note that the 30-day extension of the statutory period noted in Matter of Brown v. Schuyler-Chemung-Tioga Bd. of Coop. Educ. Servs., 5 A.D.3d 939, 775 N.Y.S.2d 191 [2004] is inapplicable.   As petitioner's claim accrued on October 9, 2004, her service of a notice of claim on January 15, 2004 was untimely (see Education Law § 3813[1] ).   Since the timely service of a notice of claim is a condition precedent to prosecuting an action against a school district (see Board of Educ. of Union-Endicott Cent. School Dist. v. New York State Pub. Empl. Relations Bd., 250 A.D.2d 82, 85, 681 N.Y.S.2d 391 [1998];  Chanecka v. Board of Educ. Broome-Tioga BOCES, 243 A.D.2d 1011, 1012, 663 N.Y.S.2d 681 [1997] ) and there appears to have been no prior court approval for late service (see generally Simons v. Sherburne-Earlville Cent. School Dist., 233 A.D.2d 592, 593, 649 N.Y.S.2d 111 [1996] ), the proceeding could have been dismissed on this basis as well.

PETERS, J.

CARDONA, P.J., MERCURE, SPAIN and CARPINELLO, JJ., concur.