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Decision No. 13,342

Appeal of STUART POSSNER from a determination rendered by a hearing panel convened pursuant to Education Law 3020-a by the Board of Education of Community School District No. 21.

Decision No. 13,342

(January 24, 1995)

Bruce K. Bryan, Esq., attorney for petitioner

Lawrence Becker, Esq., attorney for respondent, Everett N. Hughes, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals a determination of a hearing panel convened pursuant to Education Law '3020-a, denying his motion to dismiss certain charges brought against him. The appeal must be dismissed.

On or about January 7, 1994, respondent found probable cause to prefer seven disciplinary charges against petitioner. Petitioner requested a hearing on the charges. Prior to the commencement of the hearing, petitioner moved to dismiss the charges as time barred by the statute of limitations set forth in Education Law '2590-j(7)(c). On or about June 7, 1994, the panel denied petitioner's motion, but granted petitioner's request that the hearing be held in abeyance while petitioner filed this appeal with the Commissioner of Education.

Petitioner and respondent advance various legal and policy arguments on the timeliness issue. I find, however, that the appeal is premature and, therefore, must be dismissed. Petitioner seeks review of the denial of his motion to dismiss the charges, made within the context of a pending '3020-a proceeding. The Commissioner of Education will not decide interlocutory determinations made prior to the final decision of a hearing panel on the charges (Appeal of Silla, 34 Ed Dept Rep 102; Appeal of St. Cyr, 27 id. 351; Matter of McFerran, 14 id. 390). As stated in Appeal of Anonymous, 30 Ed Dept Rep 321, 322:

If the charge is dismissed by the panel, the matter currently before me will be rendered moot. If the charge is sustained, petitioner may seek review of the panel decision either by an appeal to the Commissioner of Education or by a proceeding in State Supreme Court initiated pursuant to Article 78 of the New York State Civil Practice Law and Rules (Education Law '3020-a[5]). At that time, petitioner has the right to raise both procedural and substantive challenges.