Matter of Wagner v New York City Dept. of Educ., 2023 NY Slip Op 06324 [222 AD3d 445]

December 7, 2023

Appellate Division, First Department

[*1]

In the Matter of Alice S. Wagner, Respondent,

v

New York City Department of Education et al., Appellants.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Jennifer Lerner of counsel), for appellants.

Stewart Lee Karlin Law Group P.C., New York (Daniel E. Dugan of counsel), for respondent.

Order, Supreme Court, New York County (Frank P. Nervo, J.), entered November 15, 2022, which, to the extent appealed from as limited by the briefs, granted in part the petition in this hybrid CPLR article 78 proceeding and declared petitioner tenured by estoppel, unanimously reversed, on the law, without costs, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed.

This CPLR article 78 proceeding was time barred as it was commenced more than four months after the New York City Department of Education’s (DOE) determination ( see CPLR 217 [1]; Matter of Triana v Board of Educ. of City School Dist. of City of N.Y. , 47 AD3d 554 , 558 [1st Dept 2008]). DOE’s cross motion to dismiss on statute of limitations grounds should have been granted. Concur—Webber, J.P., Scarpulla, Pitt-Burke, Rosado, O’Neill Levy, JJ..