Watermanv.City of N.Y.

Supreme Court, New York County, New York.Jun 20, 2017
72 N.Y.S.3d 519 (N.Y. Sup. Ct. 2017)

No. 101592/2015.

06-20-2017

Peter WATERMAN, Petitioner, v. CITY OF NEW YORK, New York City Department of Education, and Carmen Farina, Chancellor of New York City Department of Education, Respondents.


I. FACTS ESTABLISHED BY THE UNDISPUTED PLEADINGS, AFFIDAVITS, AND ADMINISTRATIVE RECORD AND BY THE COURT'S EVIDENTIARY HEARING

Petitioner last was employed by respondent New York City Department of Education (DOE) in June 2014, when he was notified that his probationary service as a teacher was to be discontinued effective July 28, 2014. He then sought administrative review of the discontinuance and was represented by his union in that appeal.

Petitioner does not dispute that, as a DOE employee, he was required to provide his accurate current address to DOE and that, while still employed by DOE, he provided his residence address of 1573 9th Street, Brooklyn, New York 11230, to DOE. At a hearing in this proceeding on whether petitioner commenced it within four months after receiving notice of the final determination of discontinuance after the administrative review, he testified without contradiction that he moved his residence from 1573 9th Street in Brooklyn to 4214 Seagate Avenue, Brooklyn, New York 11224, in October 2014. He provided his forwarding address to the Postal Service, but did not notify DOE of the change.

DOE Community Superintendent of District 32 Lillian Druck testified that, after the administrative review of the discontinuance, she mailed notice of the final determination of discontinuance dated March 3, 2015, by certified and regular first class mail March 7, 2015, to petitioner at 1573 9th Street, Brooklyn, N.Y. 11230, the only address he had provided to DOE. After the hearing, petitioner agreed to allow her to supplement her testimony with her affidavit, which attests that the certified mailing was returned to her April 9, 2015, but the regular first class mailing was never returned. Petitioner testified, however, that he never received the determination mailed March 7, 2015, through the mail.

The mailed notice shows that DOE also provided the notice to petitioner's union representative, which petitioner does not contest. See Reinhard v. City of New York, 34 AD3d 376, 377 (1st Dep't 2006). Despite his awareness that a final determination of his discontinuance was pending, he made no attempt after the administrative hearing February 25, 2015, to verify that DOE had updated his address or to inquire of his union representative or DOE whether it had made any final determination after the administrative review, until late April 2015. Harner v. County of Tioga, 5 NY3d 136, 141 (2005). See Kennedy v. Mossafa, 100 N.Y.2d 1, 5 (2003) ; California Suites, Inc. v. Russo Demolition Inc., 98 AD3d 144, 158 (1st Dep't 2012) ; Reinhard v. City of New York, 34 AD3d at 377. He then inquired of his union, which referred him to DOE's Office of Appeals and Review to obtain the determination. He visited the DOE Office of Appeals and Review May 1, 2015, and received the determination dated March 3, 2015. At that point he was still well within the limitations period of four months, even if it ran from as early as March 3, 2015. C.P.L.R. § 217(1).

II. WHEN C.P.L.R. § 217(1) BEGAN TO RUN

From the date of mailing, not reflected on the determination dated March 3, 2015, itself, and allowing five days for petitioner's receipt of the mailing, until March 12, 2015, the last day within the limitations period was July 12, 2015. Petitioner did not commence this proceeding until August 26, 2015. Petitioner claims the limitations period ran from May 1, 2015, when he actually received notice of the final determination, because he provided his new address at the administrative hearing February 25, 2015. The transcript and evidentiary record of the administrative hearing, however, do not support that claim. See Kennedy v. Mossafa, 100 N.Y.2d at 4. Neither does any evidence in respondents' administrative record indicate that respondents possessed any information suggesting that 1573 9th Street, Brooklyn, New York 11230, was not petitioner's correct current address until May 1, 2015. Nor does the certified mailing returned unclaimed suggest that petitioner's mailing address was incorrect. Absent any such indication, it is unreasonable to expect respondents to have investigated other possible addresses for petitioner "on the off chance" that he had moved to another address. Reinhard v. City of New York, 34 AD3d at 377.

Respondents were required to provide petitioner notice of their final determination discontinuing his probationary employment reasonably calculated under the circumstances to apprise him of the determination and afford him an opportunity to seek judicial review. Harner v. County of Tioga, 5 NY3d at 140 ; Kennedy v. Mossafa, 100 N.Y.2d at 9 ; California Suites, Inc. v. Russo Demolition Inc., 98 AD3d at 150. As the party interested in his appeal of the discontinuance of his probationary employment, petitioner bore the responsibility to update his address to protect his interest in his continued employment. Harner v. County of Tioga, 5 NY3d at 141 ; Kennedy v. Mossafa, 100 N.Y.2d at 11. See Reinhard v. City of New York, 34 AD3d at 377. Petitioner's failure to update his address gave respondents reason to believe that they were using his correct mailing address when Superintendent Druck mailed notice of the determination dated March 3, 2015, to 1573 9th Street, Brooklyn, N.Y. 11230, March 7, 2015. Harner v. County of Tioga, 5 NY3d at 140 ; Kennedy v. Mossafa, 100 N.Y.2d at 11.

Moreover, the first class mailing was not returned. Only the certified mailing was returned unclaimed, indicating only that petitioner had not signed the receipt for the mailing and never picked it up from the Postal Service. Harner v. County of Tioga, 5 NY3d at 140–41. An unclaimed certified mailing, unlike an undeliverable first class mailing, does not indicate that the mailing address is invalid for the addressee. Id. at 141 ; Kennedy v. Mossafa, 100 N.Y.2d at 5. Even had respondents diligently checked their records further, no evidence, other than the unsubstantiated insistence by petitioner that he provided his new address to an unidentified recipient at an unidentified point at the administrative hearing, indicates respondents would have ascertained the new address, as the 1573 9th Street, Brooklyn, address was the only one in their records. Kennedy v. Mossafa, 100 N.Y.2d at 9–10 ; Congregation Yetev Lev D'Satmar v. County of Sullivan, 59 N.Y.2d 418, 425–26 (1983) ; Reinhard v. City of New York, 34 AD3d at 377.

In sum, petitioner was on notice that the discontinuance of his probationary employment was under review and a final determination was pending, but failed to protect his interest in appealing the discontinuance by updating his address. Under the circumstances, his current address was not reasonably ascertainable by respondents through due diligence. Even the fact that the address in their records was incorrect was unindicated. Under the circumstances, respondents provided adequate notice of their final determination by mail March 7, 2015, to petitioner and to his representative, Harner v. County of Tioga, 5 NY3d at 140–41 ; Kennedy v. Mossafa, 100 N.Y.2d at 11 ; California Suites, Inc. v. Russo Demolition Inc., 98 AD3d at 155 ; Reinhard v. City of New York, 34 AD3d at 377, which petitioner is presumed to have received by March 12, 2015. C.P.L.R. § 2103(b)(2) and (c) ; King v. Department of Educ. of City of New York, 128 AD3d 443, 444 (1st Dep't 2015). Even when petitioner actually received the notice May 1, 2015, over two months remained within the applicable limitations period, but again he failed to act timely.

III. THE APPLICABILITY OF C.P.L.R. § 214(5)

Finally, petitioner seeks to avail himself of the limitations period of three years applicable to federal constitutional claims pursuant to 42 U.S.C. § 1983, C.P.L.R. § 214(5) ; Owens v. Okure, 488 U.S. 235, 249–50 (1989) ; Higgins v. City of New York, 144 AD3d 511, 512 (1st Dep't 2016) ; Mulcahy v. New York City Dept. of Educ., 99 AD3d 535, 536 (1st Dep't 2012) ; Palmer v. State of New York, 57 AD3d 364, 364–65 (1st Dep't 2008), claiming he was denied his federal constitutional right to procedural due process. U.S. Const. amend. XIV, § 1. The only inadequacies petitioner alleges in his opportunity to be heard are that he was denied a pre-termination administrative hearing before a neutral arbitrator pursuant to New York Education Law § 3020–a, to which he claims he was entitled because he was a tenured, not a probationary, teacher. He does not claim, however, that he was denied the opportunity to raise his tenured status and entitlement to a hearing pursuant to Education Law § 3020–a in either the administrative hearing or this proceeding. Both would have provided him a full remedy by restoring him to his prior position with retroactive salary and benefits, had he prevailed, and thus afforded him adequate due process. Hudson v. Palmer, 468 U.S. 517, 533–34 (1984) ; Locurto v. Safir, 264 F.3d 154, 174–75 (2d Cir.2001) ; Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880–81 (2d Cir.1996).

Moreover, petitioner does not claim, and the evidence does not support, the absence of any opportunity to be heard. He claims, and the record supports, at best, an inadequate opportunity to be heard, because his employment did not continue pending the final administrative determination, and a non-neutral DOE official made the determination. California Suites, Inc. v. Russo Demolition Inc., 98 AD3d at 154. While the absence of any opportunity to be heard "implicates a constitutional violation of ... due process rights," the lack of an opportunity to be heard according to statutory requirements or an otherwise deficient hearing "merely implicates a ‘violation of lawful procedure’ ( CPLR 7803[3] )," California Suites, Inc. v. Russo Demolition Inc., 98 AD3d at 152, which required petitioner "to seek relief in a special proceeding." California Suites, Inc. v. Russo Demolition Inc., 98 AD3d at 153.

IV. CONCLUSION

Consequently, insofar as petitioner was within the statute of limitations applicable to his federal constitutional claim, the court dismisses that claim. C.P.L.R. §§ 3211(a)(7), 7804(f). Insofar as he claims that respondents violated lawful procedure by providing him a deficient opportunity to be heard, he was governed by the limitations period of four months under C.P.L.R. § 217(1), which he failed to meet, requiring dismissal of the petition in its entirety as set forth above. C.P.L.R. §§ 3211(a)(5), 7804(f) ; California Suites, Inc. v. Russo Demolition Inc., 98 AD3d at 153–54.

For all the reasons explained, the court denies the petition and dismisses this proceeding due to its untimeliness under C.P.L.R. § 217(1) and petitioner's failure to allege a federal constitutional claim that respondents violated procedural due process, not subject to C.P.L.R. § 217(1). This decision constitutes the court's order and judgment of dismissal. C.P.L.R. § 7806.