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Decision No. 13,881

Appeal of JUDITH McCLURE HESSNEY from action of the Board of Education of the Union Free School District of the Tarrytowns and Donald R. Kusel, Superintendent, relating to a preferred eligible list.

Decision No. 13,881

(March 9, 1998)

James R. Sandner, Esq., attorney for petitioner, John H. Jurgens, Esq., of counsel

Plunkett & Jaffe, P.C., attorneys for respondents

MILLS, Commissioner.--Petitioner challenges respondents' refusal to hire her for a computer teaching position while she was on a preferred eligible list. The appeal must be dismissed.

Petitioner gained tenure as a business education teacher in respondent district in 1982. In 1990, the district abolished one business education position and terminated petitioner's services effective July 1, 1990. Petitioner's name was placed on a preferred eligible list for appointment to future vacancies in the district consistent with Education Law ""2510(3) and 3013(3). On July 1, 1993, a vacancy occurred within the district for a computer teacher position; the district filled that position by hiring Olivia Wiener effective September 1, 1993. On November 19, 1993, petitioner made a formal claim to the computer teacher position, alleging that the board had filled that position in violation of her rights under Education Law ""2510(3) and 3013(3).

On or about December 21, 1993, petitioner commenced an Article 78 proceeding in Supreme Court, Westchester County, against the board of education and the superintendent, but neither named nor served Olivia Wiener, who then occupied the position claimed by petitioner. Petitioner demanded:

. . . . that an order and judgment be entered declaring the actions of the respondents Board of Education of the Public Schools of the Tarrytowns and Dr. Donald R. Kusel, as Superintendent of Schools, in appointing Olivia Wiener to a Computer Teacher position effective on or about September 1, 1993, and the failure to recall petitioner from the preferred eligibility list as illegal, arbitrary and capricious, and ordering respondents to recall and reinstate petitioner to the Computer Teacher position nuncprotunc to September 1, 1993, together with back pay, seniority and all other emoluments of employment together with costs and disbursements of this proceeding and for such other and further relief as to this Court may seem just and proper.

Respondents moved to dismiss the Article 78 proceeding on or about March 31, 1994, on the grounds that petitioner had failed to join a necessary party, i.e., Olivia Wiener, pursuant to CPLR "1001(a), and had failed to exhaust available administrative remedies. By an order dated January 13, 1995, the Article 78 proceeding was dismissed for failure to exhaust. Petitioner duly appealed to the Appellate Division, Second Department, which transferred the matter to the Appellate Division, Third Department, which affirmed on June 20, 1996. Petitioner sought leave to appeal to the Court of Appeals, but leave was denied by an order dated November 19, 1996. Petitioner then commenced this appeal pursuant to Education Law "310 on December 12, 1996.

The petition in this appeal is essentially a recitation of the procedural history of this matter. The petition attaches and incorporates the record on appeal presented to the Appellate Division, Second Department, which includes the original Article 78 petition dated December 21, 1993. All of the operative allegations of wrongdoing on the part of respondents and demand for relief are contained in that December 21, 1993, Article 78 petition. In that petition, petitioner claims that the filling of the computer teacher position by Olivia Wiener was in violation of her rights under Education Law "3013(3), and demands that she be placed in that position retroactive to September 1, 1993.

Respondent disputes petitioner's claim that the computer teacher position filled by Olivia Wiener was "similar" to the position formerly held by petitioner, within the meaning of Education Law "3013(3). Respondent further alleges that Olivia Wiener, as the occupant of the computer teacher position, was and is a necessary party to this proceeding, and that petitioner has failed to make her a party either to the Article 78 proceeding or to this continuation of that proceeding before me. Respondents further claim that the appeal is untimely because Commissioner's Regulation 275.16 requires that an appeal be commenced within 30 days of the making of the decision or the performance of the act complained of; respondents do not claim that this appeal is untimely as to them, but that it is now untimely as against Olivia Wiener, a necessary party, and that the appeal must therefore be dismissed.

The appeal must be dismissed. It is clear that the rights and interests of all persons and parties became fixed as of September 1, 1993, the effective date of Olivia Wiener's appointment, and that when the Article 78 proceeding was commenced in 1993, Ms. Wiener occupied the position claimed by petitioner. At that time, Ms. Wiener's rights were in jeopardy, and if petitioner had succeeded in that proceeding, Ms. Wiener's rights would have been inequitably affected within the meaning of CPLR 1001(a). If this appeal had originally been commenced before me in 1993, there is no question that Olivia Wiener was a necessary party, and that the appeal would have been subject to dismissal for failure to join her. This has long been the rule, both before and after this matter arose. Appeal of DiStefano, 36 Ed Dept Rep 217; Appeal of Healy, 34 id. 611; Appeal of Marcoccia, 34 id. 418; Appeal of Bonanno, 33 id. 610; Appeal of Chaney, 33 id. 12; Appeal of Como, 30 id. 214; Appeal of Giglia, 27 id. 453. Indeed, if this matter had been commenced before me in 1993 without Olivia Wiener as a party, and petitioner had sought to join her more than 30 days after the act complained of, there is authority that such an attempt would have been untimely (Appeal of Giglia, supra, p.455).

Had this matter been pursued as a "310 appeal in 1993, petitioner would have had until October 1, 1993, i.e., 30 days after the effective date of the appointment of Olivia Wiener to the disputed position, to commence an appeal against both the school district respondents and Ms. Wiener (8 NYCRR "275.16). Because petitioner chose to proceed instead pursuant to Article 78, as she was entitled to, she had until January 1, 1994, i.e., four months after September 1, 1993, to proceed against the school district respondents and Ms. Wiener (CPLR 217). Both 8 NYCRR "275.16 and CPLR 217 are "statutes of repose," i.e., their purpose is to fix a time beyond which rights are no longer in jeopardy.

In circumstances similar to this appeal, where a petitioner has first gone to the courts but been dismissed on some basis not involving the merits, the date of dismissal is generally regarded as the equivalent of the date of the "making of the decision or the performance of the act complained of" in "275.16. Previous decisions have allowed an appeal to the Commissioner within 30 days after such dismissal (Matter of Buffalo Teachers Federation, Inc., 23 Ed Dept Rep 230; Matter of Van Druff, 21 id. 635; Matter of Barnes, 21 id. 594; Matter of Lortz, 7 id. 3).

In the present matter, it is clear that petitioner knew that Olivia Wiener had been awarded the contested position no later than December 21, 1993, because Ms. Wiener is identified by name in the notice of petition for the Article 78 proceeding initiated on that day. Petitioner also knew that respondent claimed that Ms. Wiener was a necessary party no later than March 31, 1994, when respondents moved to dismiss the Article 78 proceeding. Petitioner continued to know of respondent's claim when leave to appeal to the Court of Appeals was denied on November 19, 1996. Nevertheless, petitioner commenced this appeal on December 12, 1996, and again failed to name or serve Ms. Wiener. Respondents again asserted that Ms. Wiener was a necessary party in their answer. The record in this matter indicates that petitioner's reply to respondents' answer was due early in February 1997, but that petitioner's attorney on three separate occasions contacted my Office of Counsel to obtain extensions. Petitioner finally served her reply on May 22, 1997, and only at that point requested permission to join and serve Ms. Wiener.

It is clear that Olivia Wiener was a necessary party to the original Article 78 proceeding, and that after January 1, 1994, Supreme Court, Westchester County, was without authority to add her as a party (see, Matter of Mount Pleasant Cottage School Union Free School District v. Sobol, 163 Ad2d 715, aff'd 78 NY2d 935). It is equally clear that Ms. Wiener would have been a necessary party to a "310 appeal commenced in 1993, and that she is also a necessary party to this appeal. I reject any notion that Ms. Wiener and respondents are united in interest. At any time throughout the litigation of this matter, the school district respondents could have abandoned the defense of this case or sought some accommodation with petitioner that would have been detrimental to Ms. Wiener's interests. By failing to join Ms. Wiener as a party, petitioner deprived her of any opportunity to defend her rights independently, without relying on the good will and adversarial skills of respondents and their attorneys.

Petitioner has offered no reason either in the petition or in the reply as to why petitioner could not have joined and served Ms. Wiener within 30 days after the matter was dismissed by the Court of Appeals, or why she delayed more than five months after the commencement of this appeal to request joinder. I find petitioner's request, made more than three and a half years after Ms. Wiener's appointment to the contested position, to be unreasonable. Petitioner in effect asks me to correct not one but two failures to join Ms. Wiener, who had every right to believe that her rights had become secure as of January 1, 1994, since no proceeding had been commenced against her at that time. Beyond that point, even the Supreme Court could not have done what she now asks me to do (Matter of Mount Pleasant Cottage School Union Free School District v. Sobol, supra).

In view of the foregoing, to order the joinder of Ms. Wiener at this extremely late date would be inequitable and I decline to do so. I will not consider the other claims or contentions of the parties.