| Matter of Andersen v Klein |
| 2008 NY Slip Op 03046 [50 AD3d 296] |
| April 3, 2008 |
| Appellate Division, First Department |
| In the Matter of James Andersen, Respondent, v Joel I.Klein, as Chancellor of the New York City Board of Education,Appellant. |
—[*1] Mark Gimpel, New York, for respondent.
Judgment, Supreme Court, New York County (Paul G. Feinman, J.), entered December 8,2006, inter alia, expunging respondent Board of Education's 2004 year-end unsatisfactory ratingof petitioner probationary teacher, and directing respondent to revoke petitioner's discontinuanceand implement his reinstatement, unanimously reversed, on the law, without costs, the petitiondenied and the proceeding dismissed.
On June 8, 2004, petitioner's principal gave petitioner a year-end rating of unsatisfactory andrecommended discontinuance of petitioner's probationary service. By letter dated October 29,2004, respondent's Local Instructional Superintendent affirmed the discontinuance effective thatday. Petitioner's time to seek judicial review of the discontinuance began to run upon his receiptof the October 29, 2004 letter, and was not postponed or tolled by the administrative reviewcompleted by the same Local Instructional Superintendent on September 16, 2005 when, afterconsidering a March 2005 report of a three-member committee designated by the Chancellor, hereaffirmed the discontinuance (see Matter of Frasier v Board of Educ. of City School Dist. ofCity of N.Y., 71 NY2d 763, 766-767 [1988]). Accordingly, the proceeding, which wascommenced in January 2006, more than four months after petitioner's receipt of the October 29,2004 letter, is time-barred to the extent it challenges the discontinuance and seeks reinstatement(see Matter of Johnson v Board of Educ. of City of N.Y., 291 AD2d 450 [2002]). Whilerespondent concedes that the proceeding is timely to the extent it challenges the June 2004year-end unsatisfactory rating (see id., citing, inter alia, Matter of Bonilla v Board ofEduc. of City of N.Y., 285 AD2d 548 [2001]), the rating is rationally supported by evidencethat petitioner [*2]was unable to control his classroom, namely,the principal's reports of his observations of petitioner's classroom (see generally Flacke vOnondaga Landfill Sys., 69 NY2d 355, 363 [1987]). Concur—Lippman, P.J., Tom,Buckley and Moskowitz, JJ.