Opinion
11878-11878A Index No. 102028/2016 Case No. 2019-2719, 2019-04295
09-29-2020
In re Alina Esther MINKIN, Petitioner–Appellant, v. The NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Respondents–Respondents.
Stewart Lee Karlin Law Group, P.C., New York (Stewart Lee Karlin of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Daniel Matza-Brown of counsel), for respondents.
Stewart Lee Karlin Law Group, P.C., New York (Stewart Lee Karlin of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Daniel Matza-Brown of counsel), for respondents.
Acosta, P.J., Friedman, Moulton, Shulman, JJ.
Order and judgment (one paper), Supreme Court, New York County (Nancy M. Bannon, J.), entered November 1, 2018, which granted respondents' cross motion to dismiss the petition to annul respondents' determination, effective August 11, 2016, to discontinue petitioner's employment as a probationary teacher, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs. Order, same court and Justice, entered June 14, 2019, which, to the extent appealed from as limited by the briefs, denied petitioner's motion to renew, unanimously affirmed, without costs.
Supreme Court properly found that petitioner failed to exhaust her administrative remedies with respect to the "ineffective" rating in her evaluation (see Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560 [1978] ; Matter of Nayci Contr. Assoc., LLC v. New York City Dept. Of Consumer Affairs, 170 A.D.3d 435, 93 N.Y.S.3d 555 [1st Dept. 2019] ). Petitioner brought this article 78 proceeding while the underlying administrative appeal of her ineffective rating was still pending ( Koch v. New York State Div. of Human Rights, 84 A.D.2d 520, 443 N.Y.S.2d 382 [1st Dept. 1981], affd 55 N.Y.2d 864, 447 N.Y.S.2d 925, 432 N.E.2d 797 [1982] ).
The court also properly determined that petitioner's challenge to the discontinuance of her probationary status was time-barred. The statute of limitations to challenge the decision expired on December 12, 2016, which was four months after the termination's effective date (August 11, 2016) (see e.g. Matter of Alleyne v. Department of Educ. of the City of N.Y., 176 A.D.3d 462, 107 N.Y.S.3d 859 [1st Dept. 2019] ; Matter of Zarinfar v. Board of Educ. of the City School Dist. of the City of N.Y., 93 A.D.3d 466, 939 N.Y.S.2d 702 [1st Dept. 2012] ).
Petitioner's motion to renew was properly denied. Such a motion must be based upon new facts that were not offered on the prior motion and that would change the prior determination, and petitioner, who presented no new relevant facts on the motion to renew, has failed to meet this standard (see CPLR 2221[e] ).