Karin v. Board of Ed. of Central School Dist. No. 1 of Towns of New Hartford, Et Al. Oneida County

• Decision Date: 25 February 1977
• Docket Number: No. 1,1
• Citation: 393 N.Y.S.2d 135,56 A.D.2d 721
• Court: New York Supreme Court — Appellate Division
• Parties: Application of Nora KARIN, Appellant, v. The BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1 OF the TOWNS OF NEW HARTFORD, ET AL., ONEIDA COUNTY, Respondents. Appeal

Page 135

393 N.Y.S.2d 135

56 A.D.2d 721

Application of Nora KARIN, Appellant, v. The BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1 OF

the TOWNS OF NEW HARTFORD, ET AL., ONEIDA COUNTY,

Respondents.

Appeal No. 1.

Supreme Court, Appellate Division, Fourth Department.

Feb. 25, 1977.

Michaels & Michaels, Martin M. Michaels, Syracuse, for appellant.

Kernan & Kernan, Earle C. Bastow, Utica, for respondents.

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

MEMORANDUM:

On October 14, 1969, petitioner, Nora Karin, was presented with a notice of charges by the respondent, Board of Education, and was informed that section 3012 of the Education Law permitted her to appear before the Board and answer the charges. Following a hearing the Board on November 11, 1969 voted to affirm the charges and petitioner was dismissed from her employment with respondent. Thereafter on December 9, 1969 petitioner elected to appeal the Board's decision to the Commissioner of Education. By decision of April 15, 1970 the Commissioner affirmed the Board's determination and dismissed the appeal. On August 11, 1970 petitioner commenced an Article 78 proceeding to review the determination of the Board. Special Term correctly concluded that the petition should be dismissed because petitioner had elected to appeal to the Commissioner and could not thereafter challenge the Board's determination in an Article 78 proceeding. Special Term further found that the proceeding commenced nine months after the Board's determination, was untimely under CPLR 217. Petitioner filed a notice of appeal from Special Term's judgment but did nothing to perfect it. Thereafter, on January 5, 1975, and after a change of counsel, petitioner obtained an order to show cause why she should not be relieved of her dismissal on the grounds that the Board of Education lacked jurisdiction to discharge her. By order of April 16, 1976 Special Term denied the petition and granted the Board's cross-motion to dismiss.

Having elected to appeal the Board's decision to the Commissioner of Education, petitioner may not seek review of the Board's determination, but may obtain judicial review of the Commissioner's determination if it is shown to have been 'purely arbitrary' (Mtr. of Baer v. Nyquist, 34 N.Y.2d 291, 357 N.Y.S.2d 442, 313 N.E.2d 751; Mtr. of Board of Education of City of N.Y. v. Nyquist, 31 N.Y.2d 468, 341 N.Y.S.2d 441, 293 N.E.2d 819). Under the circumstances here the petitioner failed to join the Commissioner of Education, an indispensable party. She failed to name the Commissioner in the caption of the proceeding, demanded no relief from and did not refer to the Commissioner as a respondent in the petition. Petitioner also failed to perfect the appeal for more than five years. In view of this and because of the limited scope of judicial review, we find no abuse of discretion by Special Term in denying leave to amend the petition to name the Commissioner...