SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

778 

CA 13-02155

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ. 

 

IN THE MATTER OF ROBERT PUCHALSKI, 

PETITIONER-APPELLANT, 

 

V MEMORANDUM AND ORDER

DEPEW UNION FREE SCHOOL DISTRICT AND BOARD 

OF EDUCATION OF DEPEW UNION FREE SCHOOL 

DISTRICT, RESPONDENTS-RESPONDENTS. 

ARTHUR P. SCHEUERMANN, GENERAL COUNSEL, SCHOOL ADMINISTRATORS

ASSOCIATION OF NEW YORK STATE, LATHAM (A. ANDRE DALBEC OF COUNSEL),

FOR PETITIONER-APPELLANT. 

HARRIS BEACH PLLC, BUFFALO (TRACIE L. LOPARDI OF COUNSEL), FOR

RESPONDENTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Erie County (John M.

Curran, J.), entered May 9, 2013 in a proceeding pursuant to CPLR

article 75. The order, among other things, granted respondents’

motion to dismiss the petition. 

It is hereby ORDERED that the order so appealed from is affirmed

without costs.

Memorandum: In this proceeding pursuant to CPLR article 75,

petitioner appeals from an order that granted respondents’ pre-answer

motion to dismiss the petition. Although we agree with petitioner

that Supreme Court erred in dismissing the petition as time-barred, we

conclude that the court properly granted the motion on the alternative

ground that petitioner’s service of the petition was defective. We

therefore affirm.

Petitioner was employed by respondents as an administrator for

over 17 years and as the elementary school principal since 2003. 

Petitioner was granted tenure effective September 2003. On February

28, 2012, respondents served petitioner with 21 charges of, inter

alia, “misconduct, immoral character and/or conduct unbecoming a

principal,” such as improperly using district finances, stealing

services by using business hours to make lengthy personal telephone

calls to two former female employees, and being frequently absent from

school without an excuse and without notifying the proper people. 

Petitioner requested a hearing pursuant to Education Law § 3020-a and

a hearing was held over six days, concluding on October 23, 2012. 
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On January 15, 2013, the Hearing Officer (HO) issued a decision

that, inter alia, imposed a penalty of termination. The HO emailed

that decision to the attorneys for the parties on January 15, 2013,

and the State Education Department (SED) received the HO’s decision

from the HO on January 16, 2013. The SED then mailed the HO’s

decision to the parties on January 22, 2013. Petitioner received that

mailing the following day, and he filed a petition seeking an order

vacating the decision of the HO pursuant to CPLR 7511 on February 1,

2013.

In lieu of answering, respondents filed a pre-answer motion to

dismiss the petition on the grounds that the proceeding was not timely

commenced under Education Law § 3020-a (5) and that the court lacked

personal jurisdiction over respondents because the notice of petition

and petition were not properly served. In support of the motion,

respondents submitted the affidavit of a payroll clerk employed by

respondent Depew Union Free School District (District), who was

assigned to work at the District’s business office. The payroll clerk

averred that she was responsible for gathering payroll information

from “all non-instructive employees,” calculating their salaries, and

processing payroll through the District’s computer system. The

payroll clerk further averred that she was not authorized to accept

service of legal papers on behalf of respondents, and that on February

5, 2013 at approximately 3:15 p.m. she was at her desk in the

District’s business office when a man carrying a large box with notes

labeled “district clerk” told the payroll clerk that he had a box for

the “district clerk or the superintendent.” The payroll clerk told

the man that the District’s administrative offices were at a different

location, but the man indicated that he did not have to give the box

to the District’s Superintendent or to the District Clerk, and that he

would leave the box with her. The payroll clerk averred that she told

the man her name and that she was responsible for payroll services,

and that the man who delivered the papers never asked her whether she

was authorized to accept service of the papers.

There is no dispute that the man at issue was petitioner’s

process server, or that the box contained the petition. Indeed,

petitioner opposed the motion through a cross motion in which he,

inter alia, sought a “judgment dismissing the motion . . . and

granting the relief demanded in the . . . [p]etition.” In support of

the cross motion, petitioner submitted an affidavit of his process

server, who indicated that he served the petition on the payroll

clerk. According to the process server, at the time he served the

petition, he informed the payroll clerk that he had papers for the

District Clerk or the Superintendent. The payroll clerk indicated

that neither the District Clerk nor the Superintendent was available,

and she advised the process server that she was the payroll clerk. 

The process server nevertheless served the petition on the payroll

clerk given his belief that “she was the clerk for the [S]chool

[D]istrict.”

As noted, the court granted the motion on both the filing and

service grounds. The court determined that the petition was not

timely filed pursuant to Education Law § 3020-a (5) inasmuch as the
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petition was not filed within 10 days of petitioner’s receipt of the

HO’s decision from the HO via email. The court further determined

that petitioner’s service of the petition was defective inasmuch as

there was no evidence that the “payroll clerk was a designated school

officer of the [District].”

The propriety of the court’s determination that the petition was

not timely filed turns on the interpretation of Education Law § 3020-a

(4) and (5). Pursuant to section 3020-a (4) (a), “[t]he hearing

officer shall render a written decision within [30] days of the last

day of the final hearing, or in the case of an expedited hearing

within [10] days of such expedited hearing, and shall forward a copy

thereof to the commissioner who shall immediately forward copies of

the decision to the employee and to the clerk or secretary of the

employing board.” Section 3020-a (4) (b) provides that “[w]ithin [15]

days of receipt of the hearing officer’s decision the employing board

shall implement the decision. If the employee is acquitted he or she

shall be restored to his or her position with full pay for any period

of suspension without pay and the charges expunged from the employment

record.” Finally, section 3020-a (5) (a) provides that, “[n]ot later

than [10] days after receipt of the hearing officer’s decision, the

employee or the employing board may make an application to the New

York state supreme court to vacate or modify the decision of the

hearing officer pursuant to [CPLR 7511].”

“ ‘The primary consideration of courts in interpreting a statute

is to “ascertain and give effect to the intention of the 

Legislature” ’ (Riley v County of Broome, 95 NY2d 455, 463 [2000],

quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 92 [a] at 177;

see Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660

[2006]), and ‘ “we turn first to the plain language of the statute[]

as the best evidence of legislative intent” ’ (Matter of Stateway

Plaza Shopping Ctr. v Assessor of City of Watertown, 87 AD3d 1359,

1361 [2011], quoting Matter of Malta Town Ctr. I, Ltd. v Town of Malta

Bd. of Assessment Review, 3 NY3d 563, 568 [2004])” (New Yorkers for

Constitutional Freedoms v New York State Senate, 98 AD3d 285, 291-292,

lv denied 19 NY3d 814). Moreover, “[i]t is well settled that ‘[a]

statute or legislative act is to be construed as a whole, and all

parts of an act are to be read and construed together to determine the

legislative intent’ . . . Furthermore, ‘[e]ach section of a

legislative act must be considered and applied in connection with

every other section of the act, so that all will have their due, and

conjoint effect’ . . . To determine the intent of a statute, ‘inquiry

must be made of the spirit and purpose of the legislation, which

requires examination of the statutory context of the provision’ ” (New

York State Psychiatric Assn., Inc. v New York State Dept. of Health,

19 NY3d 17, 23-24).

Against that background, we conclude that the phrase “receipt of

the hearing officer’s decision” in Education Law § 3020-a (5) (a)

refers to the receipt of such decision from the SED. We thus reject

respondents’ contention that section 3020-a provides that the 10-day

period in which to appeal runs from the receipt of the HO’s decision

by email, not the receipt of the HO’s decision through mail sent by
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the SED. Rather, we agree with petitioner that, by concluding that

the 10-day period to appeal commenced upon petitioner’s receipt of the

HO’s decision by email, the court rendered the notification process

contained in Education Law § 3020-a (4) superfluous. Section 3020-a

(4) (a) addresses posthearing procedures, requiring that an HO forward

his or her decision following a hearing to the Commissioner of

Education, who in turn is charged with immediately forwarding copies

of the decision to the affected employee and to the clerk or secretary

of the employing board. Section 3020-a (5) (a) then addresses the

issue of an appeal from an HO decision, establishing the 10-day

appellate window that is at issue here. We cannot conclude that the

legislature would structure the distribution of the notice of an HO

decision such that the Commissioner of Education (and, by natural

extension, the SED) is to notify an educator of such determination and

then create a period in which to challenge an HO decision that could

begin to run before the entity charged with providing notice to an

affected educator of an HO decision has actually given such notice. 

We thus conclude that the court erred to the extent it determined that

the petition is time-barred (cf. Matter of Awaraka v Board of Educ. of

City of N.Y., 59 AD3d 442, 443).

We nevertheless affirm the order, however, because we agree with

the court that petitioner’s service of the petition was defective. 

The decision of the Second Department in Matter of Franz v Board of

Educ. of Elwood Union Free Sch. Dist. (112 AD2d 934, lv denied 67 NY2d

603) is instructive. There, “[t]he notice of petition was personally

delivered to [the] respondent [Board of Education]’s secretary,” whom

the Second Department concluded was “not a ‘school officer’ as set

forth in . . . Education Law [§ 2 (13)]” (id. at 935). In support of

that conclusion, the Second Department noted that “[t]he courts of

this State have consistently required strict compliance with the

statutory procedures for the institution of claims against the State

and its governmental subdivisions, and where the Legislature has

designated a particular public officer for the receipt of service of

process, we are without authority to substitute another” (id. at 934-

935; see Matter of CL & F Dev., LLC v Jaros, 57 AD3d 1468, 1469). We

likewise conclude here that the payroll clerk employed in the

District’s business office was not a “school officer” under the

Education Law. 

Pursuant to CPLR 311 (a) (7), “[p]ersonal service upon a

corporation or governmental subdivision shall be made by delivering

the summons . . . upon a school district, to a school officer, as

defined in the education law.” Education Law § 2 (13) defines the

term school officer as “a clerk, collector, or treasurer of any school

district; a trustee; a member of a board of education or other body in

control of the schools by whatever name known in a union free school

district, central school district, central high school district, or in

a city school district; a superintendent of schools; a district

superintendent; a supervisor of attendance or attendance officer; or

other elective or appointive officer in a school district whose duties

generally relate to the administration of affairs connected with the

public school system.”
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Although Education Law § 2 (13) refers to “a clerk,” we conclude

that the payroll clerk at issue here is not “a clerk” within the

meaning of that section. We note that Education Law § 2130 is

entitled “Clerk, treasurer and collector in union free school

district,” and it provides, inter alia, for the appointment of an

“individual as clerk of the board of education of such district” (§

2130 [1]). Sections 2 and 2130 of the Education Law were enacted at

the same time (see L 1947, ch 820) and, in reading those sections

together (see generally McKinney’s Cons Laws of NY, Book 1, Statutes §

97, Comment), we conclude that the reference to a singular clerk in

section 2130 (1) must apply to section 2 (13), such that there cannot

be more than one person who is “a clerk” of the school district. We

thus conclude that the payroll clerk was not eligible to be served

with process as “a clerk” under section 2 (13). 

All concur except SMITH, J.P. and PERADOTTO, J., who concur in the

result in the following Memorandum: We concur in the result reached

by the majority, i.e., that Supreme Court properly dismissed the

petition in this CPLR article 75 proceeding. We write separately,

however, because we respectfully disagree with the majority’s

conclusion that the petition was timely filed. We instead agree with

the trial court that the petition was untimely inasmuch as it was not

filed within “ten days after receipt of the hearing officer’s

decision” (Education Law § 3020-a [5] [a]). 

As the majority notes, petitioner was employed by respondents as

an administrator for over 17 years and as the elementary school

principal since 2003, when he was granted tenure. On February 28,

2012, respondents filed formal disciplinary charges against

petitioner, and petitioner requested a hearing pursuant to Education

Law § 3020-a. Following the hearing, the Hearing Officer (HO)

sustained the charges against petitioner and determined that

termination was the appropriate penalty. The HO issued his decision

on January 15, 2013, and emailed it to the parties on the same date. 

That evening, respondent Board of Education of Depew Union Free School

District adopted a resolution to terminate petitioner’s employment. 

By letter dated January 16, 2013, respondent Depew Union Free School

District (District) notified petitioner that it was implementing the

penalty imposed by the HO and that petitioner’s employment with the

District was terminated effective January 15, 2013. Petitioner

received the District’s letter on January 17, 2013. The HO also

mailed a copy of his decision to the State Education Department (SED),

which received the decision on January 16, 2013. The SED then mailed

a copy of the decision to the parties on January 22, 2013. 

Petitioner’s attorney received the mailing from the SED on January 23,

2013.

On February 1, 2013, petitioner commenced this CPLR article 75

proceeding seeking to vacate the HO’s decision and, on February 5,

2013, a process server hired by petitioner served the notice of

petition and petition upon a payroll clerk employed by the District in

its business office. In lieu of answering, respondents filed a preanswer motion to dismiss the petition on the grounds that the court

lacked personal jurisdiction over respondents based upon improper
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service of process and that the proceeding was not timely commenced

under Education Law § 3020-a. The court granted the motion,

concluding both that the petition was not timely filed pursuant to

Education Law § 3020-a (5) and that petitioner’s service of the

petition was defective because there was no evidence that the “payroll

clerk was a designated school officer of the [District].”

We agree with the majority’s conclusion that the court properly

dismissed the petition for lack of personal jurisdiction based on

improper service of process, and thus concur in the result. We

disagree with the further conclusion of the majority, however, that

the court erred in determining that the proceeding is time-barred.

Education Law § 3020-a sets forth disciplinary procedures for,

inter alia, tenured teachers and administrators. As relevant here,

subdivision (4) of section 3020-a governs post-hearing procedures, and

subdivision (5) governs appeals from a hearing officer’s

determination. With respect to post-hearing procedures, Education Law

§ 3020-a (4) (a) provides that “[t]he hearing officer shall render a

written decision within [30] days of the last day of the final

hearing, . . . and shall forward a copy thereof to the commissioner

[of education of the State of New York] who shall immediately forward

copies of the decision to the employee and to the clerk or secretary

of the employing board” (see § 2 [5]). Section 3020-a (4) (b)

provides that “[w]ithin [15] days of receipt of the hearing officer’s

decision the employing board shall implement the decision.” With

respect to appeals, section 3020-a (5) (a) states that, “[n]ot later

than [10] days after receipt of the hearing officer’s decision, the

employee or the employing board may make an application to the New

York state supreme court to vacate or modify the decision of the

hearing officer pursuant to [CPLR 7511].”

The issue here is whether “receipt” as used in Education Law §

3020-a (5) (a), which governs the timeliness of appeals, is limited to

receipt of the decision from the commissioner via the procedure set

forth in section 3020-a (4) (a), or whether “receipt” encompasses

other means of delivery, such as the HO’s email transmission to the

parties in this case. Petitioner asserts, and the majority agrees,

that the language “receipt of the hearing officer’s decision” in

section 3020-a (5) refers to the receipt of the decision from the SED

as set forth in section 3020-a (4). We disagree. 

It is well settled that “[t]he primary consideration of courts in

interpreting a statute is to ‘ascertain and give effect to the

intention of the Legislature’ ” (Riley v County of Broome, 95 NY2d

455, 463, quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 92

[a], at 177), and that “the words of the statute are the best evidence

of the Legislature’s intent” (id.). “ ‘[A] court cannot amend a

statute by inserting words that are not there,’ . . . [and] ‘an

inference must be drawn that what is omitted or not included was

intended to be omitted and excluded’ ” (Matter of Chemical Specialties

Mfrs. Assn. v Jorling, 85 NY2d 382, 394, rearg denied 85 NY2d 1033). 

Thus, “[w]here . . . a statute is clear, a court should not attempt to

cure an omission in the statute by supplying what it believes should
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have been put there by the Legislature” (Matter of Daniel C., 99 AD2d

35, 41, affd 63 NY2d 927; see McKinney’s Cons Laws of NY, Book 1,

Statutes § 363, Comment).

Here, although section 3020-a (4) (a) of the Education Law

provides that a hearing officer “shall forward” a copy of his or her

decision to the SED, which in turn “shall immediately forward” copies

of the decision to the employee and the employing board, the statute

does not state that such procedure is the only method of notifying the

parties of a hearing officer’s decision. In order to accept the

restrictive definition of “receipt” advanced by petitioner and adopted

by the majority, we would have to insert language into the statute by

construction. Specifically, we would have to read the statute as

stating that “[n]ot later than [10] days after receipt of the hearing

officer’s decision [from the commissioner], the employee or the

employing board may make an application to the New York state supreme

court to vacate or modify the decision of the hearing officer” (§

3020-a [5] [a]). In our view, had the legislature intended to limit

receipt of the decision for purposes of measuring the time to appeal

in subdivision (5) (a) to receipt from the SED as required in

subdivision (4) (a), it could easily have done so by inserting the

above italicized language.

Contrary to the assertion of petitioner, we conclude that

allowing receipt of the decision from someone other than the

commissioner does not render the notice provisions in section 3020-a

(4) (a) of the Education Law superfluous. Those provisions ensure

that there is a procedure by which the parties are certain to receive

the HO’s decision, but such procedure is not the only permissible

method of providing notice of the decision. We further note that the

SED has an independent interest in receiving notice of disciplinary

determinations involving school personnel inasmuch as it is “charged

with the general management and supervision of all public schools and

all of the educational work of the state” (§ 101; see § 305 [2]

[commissioner of education “shall have general supervision over all

schools and institutions which are subject to the provisions of this

chapter”]).

Finally, although not necessary to our analysis, we note that the

legislative history of the statute supports our conclusion (see

generally Riley, 95 NY2d at 463; New Yorkers for Constitutional

Freedoms v New York State Senate, 98 AD3d 285, 294-295, lv denied 19

NY3d 814). Prior to 1994, Education Law § 3020-a hearings were

conducted by a three-member hearing panel (see former § 3020-a [3]

[a]; Governor’s Program Bill Mem, Bill Jacket, L 1994, ch 691 at 8). 

After the hearing, the commissioner was required to forward a report

of the hearing, including the hearing panel’s findings and

recommendations, to the parties (see former § 3020-a [4]), who could

appeal those recommendations to the commissioner or bring a special

proceeding pursuant to CPLR article 78 (see former § 3020-a [5]). 

After 1994, section 3020-a was amended to provide that hearings were,

in most cases, to be conducted by a single hearing officer, and that

the hearing officer’s decision was a final determination appealable

only pursuant to CPLR article 75 (see § 3020-a [3] [a], [b]; [5], as
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amended by L 1994, ch 691, § 3; Governor’s Program Bill Mem, Bill

Jacket, L 1994, ch 691 at 7; Letter from State Educ Dept, Aug. 2, 1994

at 18, L 1994, ch 691). In lieu of requiring the commissioner to send

the parties a copy of the panel’s recommendation, the amendment

directed the commissioner to send the parties a copy of the hearing

officer’s decision (see § 3020-a [4], as amended by L 1994, ch 691, §

3). We thus submit that the requirement that the decision be sent

first to the commissioner and thereafter sent by the commissioner to

the parties is a vestige of the former statute, which gave the

commissioner the authority to review section 3020-a decisions, and

does not suggest that the only proper method of notice to the parties

of a hearing officer’s decision is from the commissioner.

It is undisputed that petitioner received the HO’s decision via

email on January 15, 2013, and that he did not commence this CPLR

article 75 proceeding until February 1, 2013, more than 10 days after

receipt of the HO’s decision. We therefore conclude that the court

properly dismissed the petition on the additional ground that the

proceeding was not timely commenced pursuant to Education Law § 3020-

a. 

Entered: July 11, 2014 Frances E. Cafarell

Clerk of the Court