Justice Alice Schlesinger

Teacher Sam moved to annul New York City Department of Education’s (DOE) decision placing her on its "ineligible/inquiry list" for allegedly inappropriate conduct, rendering her ineligible to substitute teach. It was alleged Sam engaged her fourth grade class in "therapeutic massage activity" involving her partnering with a 9 year old boy, and touching one another’s backs from head to buttocks. DOE moved for dismissal arguing the action was time-barred. The court noted a teacher’s time to commence an Article 78 proceeding was not extended by the filing of an administrative appeal. Yet, it stated challenges to U-ratings were treated differently as a determination did not become final and binding until the Chancellor denied the appeal and sustained the rating. The court noted it was unclear if the DOE treated Sam’s challenge as one to a U-rating, but if so, the four month period would run from the chancellor’s final determination on March 11, 2011 through July 11, 2011, and the action, commenced in 2012, would be time-barred. It stated even if the time were calculated from Sam’s acknowledged receipt of the decision on Jan. 30, 2012, the proceeding would still be untimely. Also, as Sam failed to establish on the merits a basis to annul DOE’s decision, dismissal was granted.