                          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
                              -2-                518067

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
                              -3-                518067

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.
                              -4-                  518067

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
