        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.
                                 -2-                              778
                                                           CA 13-02155

      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
                                 -3-                              778
                                                           CA 13-02155

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
                                 -4-                              778
                                                           CA 13-02155

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.”
                                  -5-                              778
                                                            CA 13-02155

     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 pre-
answer motion to dismiss the petition on the grounds that the court
lacked personal jurisdiction over respondents based upon improper
                                 -6-                              778
                                                           CA 13-02155

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
                                 -7-                              778
                                                           CA 13-02155

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
                                 -8-                              778
                                                           CA 13-02155

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
