Opinion
57-1-2019-0054
06-17-2019
In the Matter of the Application of Rhoda J. BUTLER, Petitioner, v. GRANVILLE CENTRAL SCHOOL DISTRICT, Respondent.
Rhoda J. Butler, Glens Falls, petitioner pro se. Girvin & Ferlazzo, P.C., Albany (Scott P. Quesnel of counsel), for respondent. Caroline J. Downey, New York City (Marilyn Balcacer of counsel), for New York State Division of Human Rights.
Rhoda J. Butler, Glens Falls, petitioner pro se.
Girvin & Ferlazzo, P.C., Albany (Scott P. Quesnel of counsel), for respondent.
Caroline J. Downey, New York City (Marilyn Balcacer of counsel), for New York State Division of Human Rights.
Robert J. Muller, J.
Petitioner was employed by respondent as a special education teacher. On or about June 21, 2017, respondent filed disciplinary charges against petitioner stemming from, inter alia , her alleged use of a closet as a time-out room for students. Petitioner thereafter filed a complaint against respondent with the State Division of Human Rights claiming that the charges resulted from unlawful discriminatory practices, including retaliation and discrimination based upon a medical disability. The State Division of Human Rights conducted an investigation and, on November 27, 2018, issued a determination finding "NO PROBABLE CAUSE to believe that ... respondent ... engaged in or is engaging in the unlawful discriminatory practice[s] complained of." On February 4, 2019, petitioner commenced this proceeding pursuant to Executive Law § 298 to challenge that determination.
These charges were ultimately resolved prior to a hearing, with petitioner agreeing to resign from her position.
"A proceeding to review a determination of the ... State Division of Human Rights must be initiated within 60 days after service of the order upon the party aggrieved by it" ( Matter of Lester v. New York State Off. of Parks, Recreation & Historic Preserv. , 60 AD3d 680, 681 [2009] ; see Executive Law § 298 ; Uniform Rules for Trial Cts [ 22 NYCRR] § 202.57 [a]; Matter of Johnston v. Kirkland , 100 AD3d 1354, 1356 [2012] ; Ken-Vil Assoc. Ltd. Partnership v. New York State Div. of Human Rights , 100 AD3d 1390, 1391 [2012] ). Further, the "time to commence the proceeding [is] not extended by CPLR 2103, which provision for additional time for service by mail is expressly restricted to service ‘in a pending action’ " ( Matter of Lester v. New York State Off. of Parks, Recreation & Historic Preserv. , 60 AD3d at 681, quoting Matter of Fiedelman v. New York State Dept. of Health , 58 NY2d 80, 82 [1983] ; see Matter of Mailk v. State of New York Indus. Bd. of Appeals , ––– AD3d ––––, ––––, 2019 NY Slip Op 04169, *1 [2019]; Matter of Johnston v. Kirkland , 100 AD3d at 1356 ; Matter of Gil v. New York State Div. of Human Rights , 17 AD3d 365 [2005] ; Matter of Lumbermens Mut. Cas. Co. v. City of New York , 5 AD3d 684, 685 [2004] ).
Here, the determination was served upon petitioner by regular mail on November 28, 2018. As such, the proceeding had to be commenced on or before January 28, 2019. To the extent that it was not commenced until February 4, 2019, the petition must be dismissed as time-barred.
The Court also notes that petitioner has failed to name the State Division of Human Rights as a respondent, which failure also necessitates dismissal of the petition (see CPLR 1001 [a] ; Uniform Rules for Trial Cts [ 22 NYCRR] § 202.57 [a]; Matter of Pierre v. F.J.C. Security Servs., Inc. , ––– AD3d ––––, ––––, 2019 NY Slip Op 04174, *1 [2019]; Matter of Wahab v. Maple Crest Garden Apts. , 171 AD3d 1193, 1194 [2019] ; Matter of Warden v. Southampton Town Newspapers, Inc. , 171 AD3d 1194, 1195 [2019] ; Matter of Jiggetts v. MTA Metro-N. R.R. , 121 Ad3d 414, 414 [2014] ).
While the State Division of Human Rights appeared in this proceeding notwithstanding petitioner's failure to name it as a respondent, its first objection in point of law seeks dismissal upon these grounds.
Based upon the foregoing, the petition is dismissed in its entirety.
Therefore, having considered the Notice of Petition with flash drive attached thereto, dated February 4, 2019; Petition with flash drive attached thereto, dated February 4, 2019; Verified Answer of Granville Central School District, dated March 1, 2019; Verified Answer of State Division of Human Rights with exhibits attached thereto, dated March 15, 2019; and Administrative Record, certified March 15, 2019, it is hereby
ORDERED AND ADJUDGED that the petition is dismissed in its entirety.
The original of this Decision and Judgment has been filed by the Court together with the above-referenced submissions. Counsel for respondent is directed to obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.