Jenkins v New York City Dept. of Educ., 2011 NY Slip Op 07503 [88 AD3d 600]

October 25, 2011

Appellate Division, First Department

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Antonio J. Jenkins, appellant pro se.

Michael A. Cardozo, Corporation Counsel, New York (Drake A. Colley of counsel), for respondents.

Order, Supreme Court, New York County (Karen S. Smith, J.), entered August 12, 2010, which granted defendant’s motion to dismiss the complaint, unanimously reversed, on the law, without costs, the motion denied, the complaint reinstated, the plenary action converted to a CPLR article 75 proceeding, and the matter remanded for further proceedings. Appeal from order, same court (Geoffrey D. Wright, J.), entered February 2, 2011, which denied plaintiff’s motion to restore the action to the calendar, unanimously dismissed, without costs, as moot.

In granting defendants’ motion to dismiss, the motion court found that plaintiff’s claims are time-barred because the complaints filed in this consolidated action were not filed within 10 days of the arbitrator’s determination as required by Education Law § 3020-a (5). However, plaintiff commenced the action before the arbitrator’s ruling was issued. Accordingly, the prudent course would have been to convert the instant action to an article 75 proceeding and to consider defendants’ alternative bases for dismissal ( see e.g. Scaduto v DT Indus. , 266 AD2d 149 [1999]; Broderick v Board of Educ., Roosevelt Union Free School Dist. , 253 AD2d 836 [1998], lv denied 93 NY2d 802 [1999]; CPLR 103 [c]). Concur—Tom, J.P., Saxe, Moskowitz, DeGrasse and Abdus-Salaam, JJ..