Decision No. 14,652

(October 31, 2001)

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Roosevelt Union Free School District ("respondent") concerning his former employment as a substitute teacher. The appeal must be dismissed.

Respondent employed petitioner as a substitute business education teacher from September 1993 through May 1994. In June 1994, petitioner commenced an action in Supreme Court, Suffolk County, for damages and breach of contract claiming that respondent had reneged on a promise of employment and violated the tenure laws. That action was eventually dismissed by the Supreme Court, Appellate Division, Second Department.

Petitioner asserts that the Supreme Court proceeding never reached the merits of his claims. He contends that respondent"s actions violated the tenure provisions of the Education Law and that respondent"s use of executive sessions when making personnel and employment decisions violated the Open Meetings Law. Petitioner seeks to recover unpaid salary as measured by the difference between the compensation that he received as a per diem employee and the compensation that he would have received as a full-time business education teacher.

Respondent asserts that the appeal is untimely and that the petition fails to state a claim upon which relief may be granted. Respondent contends that it did not violate the tenure provisions of the Education Law by appointing petitioner to a part-time position. Further, respondent asserts that the Commissioner lacks subject matter jurisdiction over alleged violations of the Open Meetings Law.

The appeal must be dismissed as untimely. An appeal to the Commissioner pursuant to Education Law "310 must be instituted within 30 days of the action or decision complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Here, petitioner first sought review of respondent"s actions concerning his employment by commencing an action in Supreme Court, Suffolk County in June 1994. That action was dismissed as time-barred on September 28, 1998 by the Supreme Court, Appellate Division, Second Department. Petitioner"s attempt to appeal that decision was denied by the Court of Appeals on February 18, 1999.

An unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal with the Commissioner when the appeal is commenced within a reasonable time after dismissal or abandonment of the court proceeding (Appeal of R.W., 40 Ed Dept Rep ___, Decision No. 14,580; Appeal of Kelly, 35 id. 235, Decision No. 13,528). In this instance, the last court action on petitioner"s claims occurred on February 18, 1999. Petitioner, however, waited more than two years, until May 2001, to commence a "310 appeal. Under these circumstances, I find no basis upon which to excuse his delay.

In light of this disposition, I need not address the parties remaining contentions.

THE APPEAL IS DISMISSED.

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