Matter of Strong v New York City Dept. of Educ.
2009 NY Slip Op 04114 [62 AD3d 592]
May 26, 2009
Appellate Division, First Department
As corrected through Wednesday, July 1, 2009


In the Matter of Yolanda Strong, Respondent,
v
New YorkCity Department of Education, Appellant.

—[*1]Michael A. Cardozo, Corporation Counsel, New York (Elizabeth S. Natrella ofcounsel), for appellant.

Yolanda T. Strong, respondent pro se.

Order and judgment (one paper), Supreme Court, New York County (Leland G. DeGrasse,J.), entered August 19, 2008, which granted petitioner's application to annul the determination ofrespondent Department of Education terminating petitioner's probationary employment as a perdiem substitute teacher, unanimously reversed, on the law, without costs, the application deniedand the petition dismissed. Appeal from order, same court (Walter B. Tolub, J.), entered August19, 2008, which, insofar as appealed from, denied respondent's motion to reargue, unanimouslydismissed, without costs.

The proceeding is time-barred as it was commenced more than four months after respondentinformed petitioner of its determination that she had violated its regulations by using force as adisciplinary technique, and that her name would "remain on the Ineligible Inquiry list,terminating [her] services with [respondent]" (CPLR 217 [1]). Petitioner's time to commence theproceeding was not extended by her administrative appeal of this determination (Matter ofFrasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 766-767[1988]). In any event, respondent's finding that petitioner engaged in corporeal punishment is notarbitrary and capricious (see Matter ofVon Gizycki v Levy, 3 AD3d 572, 574 [2004]), and the finding of the UnemploymentInsurance Appeal Board that petitioner did not engage in corporeal punishment [*2]lacks preclusive effect (Labor Law § 623 [2]; Wooten vNew York City Dept. of Gen. Servs., 207 AD2d 754, 754 [1994], lv denied 84NY2d 813 [1995]). Concur—Friedman, J.P., Sweeny, Nardelli, Acosta and Richter, JJ.


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