James v. Klein

43 A.D.3d 764, 842 N.Y.S.2d 23

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 25, 2007
• Status: Published

Opinion

Proceeding (transferred to this Court by order of Supreme Court, New York County [Lewis Bart Stone, J.], entered February 10, 2006), to the extent it challenges respondent Chancellor’s determination, dated June 1, 2005, which sub silentio sustained petitioner’s termination as a probationary assistant principal, unanimously dismissed, without costs. To the extent the petition. challenges the Chancellor’s sustaining of petitioner’s “unsatisfactory” rating for the period ending June 2004, the matter is remanded to Supreme Court for further proceedings consistent herewith, without costs.

Initially, we note that this proceeding was improperly transferred to this Court pursuant to CPLR 7804 (g). The appropriate standard of review to be applied here was whether the determination was arbitrary and capricious (see e.g. Matter of Von Gizycki v Levy, 3 AD3d 572 [2004]), and not whether the determination was supported by substantial evidence (CPLR 7803 [4]). Nevertheless, we will determine the issues presented, to the extent the record before this Court allows (see Matter of 125 Bar Corp. v State Liq. Auth. of State of N.Y., 24 NY2d 174 [1969]).

Petitioner failed to commence this proceeding within four months of the effective termination of her probationary employment. Her challenge to the discontinuance of her probationary status is thus time-barred (see CPLR 217 [1]; Friedland v New York City Dept. of Educ., 39 AD3d 395 [2007]).

Respondents concede that the challenge to the unsatisfactory rating is not time-barred. We decline to consider the merits of that portion of the petition, since respondents have not had the opportunity to answer (CPLR 7804 [f]), and a complete record is not before the court. Concur—Tom, J.R, Saxe, Friedman, Gonzalez and McGuire, JJ.