Levine v. Board of Education

272 A.D.2d 328, 707 N.Y.S.2d 475, 2000 N.Y. App. Div. LEXIS 4867

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 2000
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the Chancellor of the Board of Education of the City of New York dated July 22, 1998, which sustained a prior determination of the Board of Education of the City of New York, dated January 20, 1998, terminating the petitioner from his position as laboratory specialist, the petitioner appeals from a judgment of the Supreme Court, Kings County (Garry, J.), dated August 3, 1999, which denied the petition and dismissed the proceeding as barred by the four-month Statute of Limitations.

Ordered that the judgment is affirmed, with costs.

A proceeding pursuant to CPLR article 78 must be commenced within four months after the determination to be reviewed becomes final and binding (see, CPLR 217; Matter of Lubin v Board of Educ., 60 NY2d 974, 976). Where, as here, the petitioner’s remedy is in the nature of mandamus to review, the determination becomes final and binding on the date that the termination of employment becomes effective (see, Matter of De Milio v Borghard, 55 NY2d 216, 220; Matter of Shovers v Casey, 263 AD2d 458; Matter of Persico v Board of Educ., 220 AD2d 512, 513; Matter of Schulman v Board of Educ., 184 ). The petitioner’s contention that his invocation of an administrative grievance procedure in accordance with his union’s collective bargaining agreement tolled the Statute of Limitations is without merit (see, Matter of Fraiser v Board of Educ., 71 NY2d 763, 766-767; Matter of Lubin v Board of Educ., supra, at 976; Matter of De Milio v Borghard, supra, at 220; Matter of McCain v Fernandez, 226 AD2d 380, 381). Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.