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Proof of service critical in determining if an appeal from an administrative decision has been timely filed

Proof of service critical in determining if an appeal from an administrative decision has been timely filed
Matter of Maye v New York City Dept. of Educ., 2009 NY Slip Op 31815(U), August 11, 2009, Supreme Court, New York County, Docket Number: 112869/08, Judge: Nicholas Figueroa

Catherine Maye challenged an arbitration award terminating her employment as a New York City public school teacher. In February 2009 Judge Figueroa granted the Education Department?s motion to dismiss her the petition as time-barred.

Section 3020-a(5) of the Education Law required Maye to file her appeal ?not later than ten days after receipt of the hearing officer?s decision.? The Department?s motion was based on the proposition that Maye had failed to file her pleading within this ten-day period.

All well and good, said the court, but it found that there was defect in the Department?s theory that turned out to be fatal to its motion.

The court said that ?in assessing whether [the Department] has shown that [Maye] failed to meet the requirement of Section 3020-a, we must accept the Service Affidavit at its face value.?

The Department?s Service Affidavit, however, set out when the award was mailed, but was is silent as to the pivotal matter of when it was ?received? by Maye or her attorney. In other words, said the court, it appears that the Department has failed to prove that this proceeding was untimely.

Accordingly, Supreme Court granted Maye?s motion for leave to reargue and vacated its February 2009 order in favor of the Department dismissing her petition as untimely.

NYPPL comment: As a general rule, when an individual is represented by an attorney, delivery of the papers to the attorney is viewed as service on the individual. In such situations the attorney is deemed the individual's agent [see Bianca v Frank, 43 NY2d 168].

In Weeks v State of New York, 198 A.D.2d 615, the Appellate Division considered what constitutes "delivery" for the purpose of determining when the statute of limitations began to run: when it was delivered to Weeks or when it was delivered to Weeks? union.

The Appellate Division affirmed the Supreme Court's ruling that the statute of limitations did not begin to run until the award was delivered to Weeks rather from the date on which it was received by the union.

The court said that §7506(d) of the CPLR specifically provides that where a party in an arbitration is represented by an attorney, papers to be served on a party are to be served on the attorney.

In contrast, the court held that there was no similar statutory requirement when a party elects to be represented by a union representative who is not an attorney.

The court decided that "although service of the arbitration award on the union representative is a matter of courtesy ... such service does not trigger the limitations period for seeking to vacate the award...." The statute of limitations begins to run upon delivery of the award to the individual or to the individual?s attorney.

Although this decision addressed a situation arising under a disciplinary arbitration procedure, it would probably be viewed as applicable in other types of administrative proceedings such as a disciplinary action under §75 of the Civil Service Law when the employee is represented by a union official who is not an attorney.

In 1978 §75.2 was amended to allow an individual against whom charges were preferred to be represented by a representative of a recognized or certified employee organization. Prior to the effective date of the amendment only an attorney was permitted to represent the individual against whom §75 disciplinary charges were filed.

In view of the rationale underlying the Weeks decision, where an individual is represented in an administrative proceeding by a person who is not an attorney, it would appear prudent to send copies of all papers to both the individual and the individual's lay representative.

As the Maye case demonstrates, proof of delivery may also prove critical should there be a question as to whether or not a petition appealing the decision was timely filed.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2009/2009_31815.pdf

Full post as published by New York Public Personnel Law on August 27, 2009 (boomark / email).