Garguil v. Board of Ed. of Liverpool Central School Dist.

• Decision Date: 05 November 1976
• Citation: 54 A.D.2d 1085,389 N.Y.S.2d 504
• Parties: Application of Lorraine GARGUIL, Appellant, v. BOARD OF EDUCATION OF the LIVERPOOL CENTRAL SCHOOL DISTRICT, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 504

389 N.Y.S.2d 504

54 A.D.2d 1085

Application of Lorraine GARGUIL, Appellant, v. BOARD OF EDUCATION OF the LIVERPOOL CENTRAL SCHOOL DISTRICT Respondent.

Supreme Court, Appellate Division, Fourth Department.

Nov. 5, 1976.

Bernard F. Ashe, Richard C. Heffern, Albany, for appellant.

O'Hara, O'Hara & Vars, Michael J. Kawa, Liverpool, for respondent.

Before MOULE, J.P., and CARDAMONE, SIMONS, MAHONEY and DILLON, JJ.

MEMORANDUM:

In this Article 78 proceeding against the respondent Board of Education of Liverpool Central School District, the appellant, Lorraine Garguil, who seeks a declaration that her suspension without pay as a tenured school teacher was a violation of section 3020--a of the Education Law, has appealed an order and judgment at Special Term which dismissed her proceeding as time-barred under CPLR 217.

Appellant, a tenured teacher, employed by respondent for fifteen years suffered a back ailment in 1974 and asked for a first grade position where she believed there would be less stress. Respondent did not have an opening and instead offered her a kindergarten position on June 18, 1974. Appellant refused respondent's request, however, to have a physical examination by the School District physician prior to the beginning of the 1974 school year. Appellant was out on sick leave throughout the late fall of 1974 and the early winter of 1975 and advised respondent in February of her intent to return to work on March 17, 1975. In response to respondent's repeated requests that she submit to the required physical examination, appellant stated that she had always gone to women physicians and that it was against her 'creed' to be examined by a male physician.

On March 10, 1975 the respondent Board adopted a resolution which directed appellant to submit to a physical examination by the School District medical inspector and advised her that without such examination she would not be permitted to return to her teaching position. This resolution was adopted pursuant to the respondent's power under section 913 of the Education Law and a copy of the resolution was forwarded to appellant on March 17, 1975. Thereafter, on March 21, 1975 the appellant was notified that as a result of the March 10, 1975 resolution, she was being placed on a leave of absence without pay, pending a decision as to her medical problems. At approximately two week intervals, from March 24, 1975 until June 27, 1975 (the end of that school year), appellant wrote letters to the Co-ordinator of Personnel of the School District, the Accounting Department, and the Treasurer of the School District, demanding that she be paid her salary during the period of her leave of absence.

The four-month Statute of Limitations begins to run after the determination to be reviewed becomes final and binding upon petitioner, i.e., when the decision or action has an actual impact on appellant (8 Weinstein-Korn-Miller, N.Y.Civ.Prac., para. 7804.02; 24 Carmody-Wait 2d, N.Y.Prac., § 145:239). It has been held that 'where a determination is made on one date to be effective at a later date, the determination does not become 'final and binding' for purposes of the Statute of Limitations (CPLR 217) until the date it becomes effective' (Matter of Wininger v. Williamson, 46 A.D.2d 689, 360 N.Y.S.2d 262; Gates v. Walkley, 41 A.D.2d 319, 342 N.Y.S.2d 490). Were the instant proceeding to be categorized as one to review a determination (i.e., in the nature of certiorari), CPLR 217 would bar the proceeding because respondent Board suspended appellant without pay effective March 17, 1975. The petition, however, was not served until April 13, 1976, more than twelve months later, and well beyond the applicable four-month period of limitations.

This proceeding, however, seems best classified as one where there is a failure of the body or an officer to perform its duty (Matter of Soucy v. Board of Education, 51 A.D.2d 628, 378 N.Y.S.2d 500; Matter of Ferro v. Lavine, 46 A.D.2d 313, 362 N.Y.S.2d 591). In an Article 78 proceeding in the nature of mandamus the period of limitations runs from 'the respondent's refusal, upon the demand of the petitioner . . ., to perform its duty' (CPLR 217), but the demand must be made within a reasonable time or the petitioner will be barred (see, Austin v. Board of Higher Educ. of City of N.Y., 5 N.Y.2d 430, 442--443, 186 N.Y.S.2d 1, 10--12, 158 N.E.2d 681, 687--688). In Matter of Sirles v. Cordary, 49 A.D.2d 330, 332, 374 N.Y.S.2d 793, 795, the Court held that: '(t)he weight of authority . . . supports the proposition that an employee . . . who is discharged from...