IN RE: Wayne GROTH

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Wayne GROTH, appellant, v. BOARD OF EDUCATION OF UNIONDALE UNION FREE SCHOOL DISTRICT, et al., respondents.

Decided: November 28, 2006

ROBERT W. SCHMIDT, J.P., THOMAS A. ADAMS, FRED T. SANTUCCI, and ROBERT A. LIFSON, JJ. Louis D. Stober, Jr., LLC, Garden City, N.Y., for appellant. Jaspan Schlesinger Hoffman, LLP, Garden City, N.Y. (D. James Gounelas of counsel), for respondents.

In a proceeding pursuant to CPLR article 78 to review a determination dated December 6, 2004, terminating the petitioner's employment, the appeal is from a judgment of the Supreme Court, Nassau County (Bucaria, J.), dated June 22, 2005, which dismissed the petition as time barred.

ORDERED and ADJUDGED that the judgment is reversed, on the law, with costs, the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits.

 The Supreme Court erred in dismissing the proceeding as time barred.   CPLR 217 provides that a proceeding against a body or officer must be commenced within four months of the date when an administrative review becomes final and binding (see De Milio v. Borghard, 55 N.Y.2d 216, 219, 448 N.Y.S.2d 441, 433 N.E.2d 506).   Inasmuch as the petitioner was entitled to and was given a hearing, the four-month period began to run when he received notice of the administrative agency's adverse determination (see Matter of Carter v. State of N.Y., 95 N.Y.2d 267, 270, 716 N.Y.S.2d 364, 739 N.E.2d 730;  De Milio v. Borghard, supra;  Matter of Mateo v. Board of Educ., 285 A.D.2d 552, 553, 728 N.Y.S.2d 71;  90-92 Wadsworth Ave. Tenants Assn. v. City of N.Y. Dept. of Hous. Preserv. & Dev., 227 A.D.2d 331, 656 N.Y.S.2d 8).   The petitioner did not receive such notice until December 11, 2004.   Therefore, the commencement of this proceeding by filing a petition on April 11, 2005, was timely.

 Since the petition raises the issue of whether the determination terminating the petitioner's employment was supported by substantial evidence, this court is empowered to treat the matter as if it had been transferred here in the first instance (see CPLR 7804[g];  Matter of Central Nyack Fire Dist. of Town of Clarkstown v. Valley Cottage Fire Dist., 101 A.D.2d 886, 475 N.Y.S.2d 807;  Matter of O'Donnell v. Rozzi, 99 A.D.2d 494, 470 N.Y.S.2d 438;  Matter of Rivera v. Beekman, 86 A.D.2d 1, 5, 448 N.Y.S.2d 492).

Upon our review of the merits, we conclude that the hearing officer's determination was supported by substantial evidence (see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54, 379 N.E.2d 1183).   Accordingly, the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits.

The petitioner's remaining contentions are without merit.

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