State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 20, 2014 518067 

________________________________

In the Matter of CAROL A.

PALM, Formerly Known as 

CAROL P. WILLIAMSON,

Appellant,

v MEMORANDUM AND ORDER

JOHN B. KING JR., as

Commissioner of Education,

Respondent.

________________________________

Calendar Date: October 9, 2014

Before: Stein, J.P., Garry, Rose, Lynch and Devine, JJ.

__________

Schrader Israely & DeLuca, LLP, Getzville (R. Scott DeLuca

of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M.

Treasure of counsel), for respondent.

__________

Garry, J.

Appeal from a judgment of the Supreme Court (Mercure, J.),

entered September 12, 2013 in Albany County, which dismissed

petitioner's application, in a proceeding pursuant to CPLR

article 78, to review a determination of respondent revoking

petitioner's teaching certificate.

Petitioner, an employee of the Williamsville Central School

District, held permanent state certification as a teacher of

English for grades 7 through 12. In 2008, one of her former

students advised a school administrator that petitioner had

engaged in a sexual relationship with her before the student
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graduated in 1993. The school reported the allegation to the

Department of Education pursuant to 8 NYCRR part 83, which sets

forth procedures for challenges to the moral character of

certified teachers (hereinafter the part 83 regulations). After

an investigation by the Department's Office of School Personnel

Review and Accountability (hereinafter OSPRA), respondent issued

a notice of substantial question of moral character (see 8 NYCRR

83.2, 83.3). Following a hearing, the Hearing Officer found that

petitioner lacked the requisite moral character and recommended

the revocation of her teaching certificate. 

After receiving the Hearing Officer's decision, petitioner

sent correspondence to the Department in February 2012 stating

that she intended to appeal, followed in March 2012 by additional

correspondence. Respondent determined that the March 2012

correspondence constituted petitioner's appeal, dismissed it as

untimely, and revoked her teaching certificate. Petitioner then

commenced this proceeding pursuant to CPLR article 78 seeking,

among other things, to annul respondent's determination. 

Respondent submitted an answer with objections in point of law

asserting, among other things, that the appeal was properly

dismissed as untimely and that petitioner had failed to exhaust

her administrative remedies. Supreme Court dismissed the

petition on these grounds, and petitioner appeals.

It is well settled that one who challenges an

administrative action must exhaust all available administrative

remedies before seeking judicial review (see Town of Oyster Bay v

Kirkland, 19 NY3d 1035, 1038 [2012], cert denied ___ US ___, 133

S Ct 1502 [2013]; Matter of Hudson Riv. Val., LLC v Empire Zone

Designation Bd., 115 AD3d 1035, 1037 [2014]; Matter of Sabino v

DiNapoli, 90 AD3d 1392, 1393 [2011]). Failure to timely file or

perfect an administrative appeal constitutes a failure to exhaust

administrative remedies that precludes review pursuant to CPLR

article 78 (see Matter of Plummer v Klepak, 48 NY2d 486, 489

[1979], cert denied 445 US 952 [1980]; Matter of Adams v Evans,

92 AD3d 1056, 1057 [2012]). The part 83 regulations provide that

a certified teacher may commence an appeal from the findings and

recommendations of a hearing officer within 30 days after

receiving them, and that the hearing officer's determination

"shall be final" if no such appeal is taken within that time (8
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NYCRR 83.5 [c]; see 8 NYCRR 83.5 [a]; Skiptunas v State of New

York, 290 AD2d 868, 869 [2002]). 

Petitioner received a copy of the Hearing Officer's

findings and recommendations on January 20, 2012. On February 7,

2012, she sent a letter to the Department in which she stated

that she "fully intend[ed] to appeal" from the decision, asked

the Department to recognize the letter "as an official

notification of [her] intent to appeal," briefly summarized the

grounds for her challenge, and asked for information about appeal

procedures.1 On March 8, 2012, OSPRA submitted a "letter brief"

arguing that the Hearing Officer's findings and recommendations

should be upheld. An appeals coordinator promptly returned this

document to OSPRA, by correspondence copied to petitioner,

stating that the Department had not received a petition in the

matter and "currently [did] not have a pending appeal for

[petitioner]." Thereafter, on March 25, 2012, petitioner sent

respondent a document captioned "Petition for Review" setting

forth detailed arguments challenging the procedure and grounds

underlying the revocation of her teaching certificate. On April

23, 2012, OSPRA submitted a written response arguing, among other

things, that petitioner's appeal was untimely. Respondent

thereafter issued a determination dismissing the appeal as

untimely, based upon a finding that it was commenced on March 25,

2012, after the expiration of the 30-day time limit contained in

8 NYCRR 83.5. Respondent further addressed the substance of

petitioner's arguments, finding that even if the appeal had been

timely, it would have been without merit. 

Petitioner contends that she timely commenced her

administrative appeal by sending her initial correspondence to

respondent in February 2012, and that her later submission in

March 2012 was merely "supplemental." This argument is

1 An appeals coordinator responded by referring petitioner

to the part 83 regulations. Notably, respondent had previously

furnished petitioner with a copy of these regulations and a plain

language summary of hearing and appeal procedures – including

information on the applicable time limits – as an attachment to

the notice of substantial question of moral character.
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contradicted by the express language in the February 2012 letter

stating that petitioner intended the letter to notify respondent

of her intent to appeal at a later date, and to seek information

for that purpose. Notably, 8 NYCRR 83.5 (a) does not provide for

commencement by an initial notice of appeal, followed by

subsequent submissions; on the contrary, the regulation provides

that an appeal is commenced by a single submission of "original

appeal papers," which then triggers a corresponding 30-day time

limit within which responding papers must be filed. Contrary to

petitioner's further argument, OSPRA's initial response to the

February 2012 submission lacks legal significance, particularly

in light of respondent's prompt rejection of this submission and

correspondence advising the parties that no appeal was then

pending. Notably, petitioner's subsequent March 2012 letter did

not reference the February 2012 submission or claim that an

appeal had already been commenced. Accordingly, we agree with

Supreme Court that respondent did not act arbitrarily or

capriciously in determining that the appeal was not commenced by

the February 2012 submission, and that it was untimely (see

Matter of Richmondville Volunteer Emergency Squad, Inc. v New

York State Dept. of Health, 107 AD3d 1098, 1100 [2013], lv denied

22 NY3d 854 [2013]). As petitioner failed to exhaust her

administrative remedies, the court properly dismissed the CPLR

article 78 proceeding.

Stein, J.P., Rose, Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court