Important Education Law Section 3020-a Procedural Decision Concerning Time Limits

The First Department recently issued a short, but important, Education Law Section 3020-a procedural decision. Education Law Section 3020-a requires that the hearing be completed within 125 days and that a decision be rendered within 30 days of the final hearing. But, what if these time requirements are not met? In Martin v. Department of Education, ___A.D. 3d___(1st Dep't. Dec. 27, 2018), the First Department held that the failure to comply with these statutory requirements is not jurisdictional in the absence of prejudice. However, the court also held that the failure to commence an appeal within 10 days is jurisdictional.  As the court explained:

             "The petition is untimely, since plaintiff failed to commence this CPLR article 75 proceeding within 10 days of her receipt of the Hearing Officer's decision (Education Law § 3020-a[5][a]).

           Although the hearing was not completed within 125 days (Education Law § 3020-a[3][c][vii]) and the arbitration award was not issued within 30 days of the last day of the hearing (Education Law § 3020-a[4][a]), petitioner has not shown that she suffered prejudice as a result (see Matter of Leon v Department of Educ. of the City of N.Y., 115 AD3d 435, 436 [1st Dept 2014], lv denied 24 NY3d 903 [2014]; Scollar v Cece, 28 AD3d 317 [1st Dept 2006])."

       So, if the plaintiff teacher fails to file her appeal within 10 days, she is procedurally barred and the Department does not have to show prejudice. But, the fact that the decision was not timely issued is not a defense unless prejudice is shown. This decision makes no sense. Clarification of this issue is needed from the NYS Court of Appeals.

Mitchell Rubinstein