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Editor: Mitchell H. Rubinstein
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Saturday, July 23, 2011

The failure to properly and timely serve the agency issuing an adverse decision results in the court lacking “personal jurisdiction” to hear the case

Matter of Greenburgh Cent. School Dist. No. 7 v Westchester County Human Rights Commn., 2011 NY Slip Op 02009, Appellate Division, Second Department

Public agencies are not immune to the almost always fatal procedural omission of failing properly serve the necessary parties in an appeal of an adverse administrative ruling as is demonstrated in this Article 78 action.

Greenburgh Central Schools District #7 had filed CPLR Article 78 action to review the Westchester County Human Rights Commission finding that District had engaged in unlawful age discrimination in violation of the Westchester County Human Rights Law. The Commission had also imposed a monetary penalty on the District.

Supreme Court, Westchester County, after declining to extend the statute of limitations to file such an action, dismissed the proceeding for lack of personal jurisdiction.

The Appellate Division affirmed the lower court’s ruling, pointing out that it was undisputed that the school district had failed to properly serve Westchester Human Rights with the notice of petition and petition in accordance with CPLR 312.

Further, said the court, Greenburgh “failed to demonstrate good cause for an extension of time to serve, and failed to show that such an extension is warranted in the interest of justice.”

In particular, the court noted that Greenburgh had failed to demonstrate diligence in its attempt at service, and failed to demonstrate a potentially meritorious argument in support of the petition.

The decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02009.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

 

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