Jenkins v. New York City Department of Education

In granting defendants’ motion to dismiss, the motion court found that plaintiff’s claims are time-barred because the complaints filed in this consolidated action were not filed within 10 days of the arbitrator’s determination as required by Education Law § 3020-a (5). However, plaintiff commenced the action before the arbitrator’s ruling was issued. Accordingly, the prudent course would have been to convert the instant action to an article 75 proceeding and to consider defendants’ alternative bases for dismissal (see e.g. Scaduto v DT Indus., 266 AD2d 149 [1999]; Broderick v Board of Educ., Roosevelt Union Free School Dist., 253 AD2d 836 [1998], lv denied 93 NY2d 802 [1999]; CPLR 103 [c]). Concur — Tom, J.E, Saxe, Moskowitz, DeGrasse and Abdus-Salaam, JJ.