Mutschler v. Board of Educ. of William Floyd Union Free School Dist.

• Decision Date: 18 November 1991
• Citation: 177 A.D.2d 629,576 N.Y.S.2d 590
• Parties: , 71 Ed. Law Rep. 532 In the Matter of Ann MUTSCHLER, Respondent, v. BOARD OF EDUCATION OF the WILLIAM FLOYD UNION FREE SCHOOL DISTRICT, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 590

576 N.Y.S.2d 590

177 A.D.2d 629, 71 Ed. Law Rep. 532

In the Matter of Ann MUTSCHLER, Respondent, v. BOARD OF EDUCATION OF the WILLIAM FLOYD UNION FREE SCHOOL DISTRICT, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Nov. 18, 1991.

Lewis M. Wasserman, Patchogue, for appellants.

James R. Sandner, New York City (Claude I. Hersh, of counsel), for respondent.

Before MANGANO, P.J., and HARWOOD, EIBER and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to compel the appellants to pay the petitioner her salary for a 60-day period, the appeal, as limited by the notice of appeal and brief, is from so much of a judgment of the Supreme Court, Suffolk County (Doyle, J.), dated January 22, 1990, as directed the appellant to pay the petitioner for a specified 30-day period.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The petitioner, hired in 1986 as a probationary science teacher, was advised in May 1988 that she would not be recommended for continued employment. The petitioner was afforded an opportunity to address the respondent Wayne Williams, superintendent of schools, orally (cf., Education Law § 3031) but was formally advised by letter dated September 1, 1988, that she was dismissed pursuant to a resolution adopted August 22, 1988. Notwithstanding the statutory requirement that the respondents give her at least 30 days written notice of her discharge (see, Education Law § 3019-a), the letter provided that the petitioner's dismissal was "effective immediately". Ninety days later, on or about November 30, 1988, the petitioner, citing Education Law § 3031, served a "Notice of Claim" (see, Education Law § 3813), asserting that her services were improperly terminated "in that the [respondents] failed to give her requisite notice", and demanded salary and benefits.

On or about February 1, 1989, five months after the designated effective date of her discharge and approximately two months after service of the notice of claim, the petitioner commenced the instant proceeding seeking 60 days salary pursuant to Education Law §§ 3019-a and 3031. The appeal is from so much of a judgment as awarded the petitioner 30 days pay. The appellants contend that this proceeding is untimely.

Since this is not a proceeding to review the reasons for the petitioner's discharge, the four-month Statute of Limitations which runs from the stated effective date of discharge (see, CPLR 217; see also, Matter of Rappo v. City of New York Human Resources Admin., 120 A.D.2d 339, 501 N.Y.S.2d 669) does not bar the petitioner's claim (cf., Matter of Zunic v. Nyquist, 48 A.D.2d 378, 370 N.Y.S.2d 228, affd 40 N.Y.2d 962, 390 N.Y.S.2d 919, 359 N.E.2d 427). The respondents characterize this proceeding as one in the nature of mandamus to compel, for which no notice of claim is required (see, Education Law § 3813; Matter of Piaggone v. Board of Educ. Floral Park-Bellrose Union Free School Dist., 92 A.D.2d 106, 108, 459 N.Y.S.2d 629). They assert, however, that the proceeding is barred because there was no timely demand that they perform their statutory duty. We disagree.

Assuming this proceeding cannot be characterized as one at law governed by a Statute of Limitations longer than four months (see, Education Law § 3813[2-b]; cf., Todd v. Board of Educ. of City of Syracuse, 272 App.Div. 618, 74 N.Y.S.2d 468, affd 297 N.Y. 873, 79 N.E.2d 274; c...