Shovers v. Casey

263 A.D.2d 458, 691 N.Y.S.2d 906, 1999 N.Y. App. Div. LEXIS 7791

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1999
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Education of the City of New York dated September 23, 1993, which confirmed a prior determination of the respondent William P. Casey, dated June 21, 1991, denying the petitioner a certificate of completion of probation and terminating him from his position as probationary teacher, the petitioner appeals from so much of a judgment of the Supreme Court, Kings County (Jones, J.), dated April 13, 1998, as denied the petition and dismissed the proceeding on the merits. The appeal brings up for review an order of the same court (Yoswein, J.), dated February 27, 1995, which denied the respondents’ motion to dismiss the proceeding as time-barred (see, CPLR 5501 [a] [1]).

Ordered that the judgment is modified by deleting therefrom the provision dismissing the proceeding on the merits and substituting therefor a provision dismissing the proceeding as time-barred; as so modified, the judgment is affirmed insofar as appealed from; and it is further,

Ordered that the order dated February 27, 1995, is reversed and the motion to dismiss the proceeding as time-barred is granted; and it is further,

Ordered that the respondents are awarded one bill of costs.

The petitioner’s claim that the termination of his employment was arbitrary and capricious and not supported by substantial evidence is time-barred (see, Matter of Persico v Board of Educ., 220 AD2d 512, 513). Similarly, his challenge to the procedure before the Chancellor’s Committee, first raised in 1997 in his amended petition, is also time-barred (see, Matter of Persico v Board of Educ., supra; Boccone v Island Fed. Mtge. Corp., 261 AD2d 350). Bracken, J. P., Goldstein, McGinity and Schmidt, JJ., concur.