Commissioner of Education Appeals Must Be Commenced Within 30 Days

Appeal of SUSAN SUDANO, No. 17, 078 (April 20, 2017), is an important decision to be aware of. A tenured teacher sought to challenge her excessing. The Commissioner did not reach the merits of the case because of several procedural problems. With respect to Commissioner appeals, the Commissioner described the applicable statute of limitations as follows:

 An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  However, where the alleged wrong is that another teacher has been appointed to a position in violation of the petitioner’s preferred eligibility rights, the petitioner does not become aggrieved until the date that another person commences service in the position at issue (Appeal of Gimbrone, 56 Ed Dept Rep, Decision No. 17,036; Appeal of Gordon, 53 id., Decision No. 16,582; Appeal of Dickinson, 50 id., Decision No. 16,082; Appeal of Petkovsek, 48 id. 513, Decision No. 15,933).  The record indicates that petitioner commenced the appeal by serving respondents board and Colabufa within 30 days of the beginning of the school year, the first date on which petitioner became aggrieved.  To the extent petitioner contends that respondent violated Education Law §3013(3) by failing to recall her from the preferred eligibility list to vacant positions that were filled by other teachers, I find that the appeal is timely.  To the extent petitioner contends that she was not the least senior teacher in the remedial reading tenure area and should not have been excessed, I agree with respondent that such claim had to be brought within 30 days of the effective date of the abolition and is untimely. . .