Yan Ping Xu v New York City Department of Health

This Article 78 appeal was commenced by petitioner, Yan Ping Xu, to remove an unsatisfactory rating issued to her by respondent, New York City Department of Health, return her to her position and compensate her for back pay and money damages. Petitioner represented herself in this appeal and argued that respondent acted in an arbitrary and capricious manner. Respondents cross-move to dismiss the claim and petitioner cross-moves for permission to file a late notice of claim.

Petitioner worked as a City Research Scientist for New York City Department of Health and Mental Hygiene. She was terminated on March 13, 2008. Petitioner claims she had no warning that her work was unsatisfactory prior to her termination and feels that she was fired in retaliation for bringing to the attention of her supervisor incorrect figures used in a report.

Due to petitioner choosing self-representation, many procedural errors were made including the initial petition being served before it was filed, amended petitions never being filed with the court and no Notice of Claim being filed. Petitioner failed to follow proper procedure for challenging her termination. Prior to filing the Article 78 appeal in Supreme Court, she should have first appealed the performance evaluation with the appeals board and accordingly her petition is premature. Also, petitioner’s failure to file a timely notice of claim within 90 days of her termination date and the fact that she served her initial petition more than 90 days later indicates that the respondent knew nothing of her claim prior to the 90 day deadline.

Accordingly, the Supreme Court denied petitioner’s petition and cross-motion to file a late notice of claim and granted respondent’s cross-motion to dismiss petition.

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