Matter of Polito v New York City Dept. of Educ.

Matter of Polito v New York City Dept. of Educ. 2013 NY Slip Op 02138 Decided on March 28, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 28, 2013
Gonzalez, P.J., Tom, Richter, Abdus-Salaam, JJ.
9510 104919/11

[*1]In re Julianne Polito, Petitioner-Appellant,

v

The New York City Department of Education, etc., Respondent-Respondent.




Law Offices of Nicholas A. Penkovsky, P.C., Riverdale
(Nicholas A. Penkovsky of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Drake A.
Colley of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Carol E. Huff, J.), entered January 12, 2012, which, to the extent appealed from as limited by the briefs, denied the petition seeking to annul an arbitration award, and granted respondent's cross motion to dismiss the proceeding brought pursuant to Education Law § 3020-a and CPLR article 75, unanimously modified, on the law and the facts, to reduce the fine to $2,500, and otherwise affirmed, without costs.

Deference is given to the Hearing Officer's decision to credit the testimony of the special education student, who was the alleged victim of petitioner's actions, and the testimony of the teacher's aide, who was present at the time of the actions (see Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 568 [1st Dept 2008]). Contrary to petitioner's contention, the testimony of these two witnesses was not inherently incredible or contradictory.

Any prejudice that petitioner incurred in not receiving the subject student's Individual Education Plan prior to his testimony was cured when she received it later in the hearing, and was given the opportunity to move to strike on the grounds of incompetence, as well as to call additional witnesses on the issue (see Matter of Civil Serv. Empls. Assn. v Soper, 84 AD2d 927, 928 [4th Dept 1981], affd 56 NY2d 639 [1982]). Moreover, the Hearing Officer's determination that the student was competent to testify should not be disturbed (see People v Parks, 41 NY2d 36, 46 [1976]).

In the exercise of our discretion, we conclude that the $7,500 fine imposed on petitioner for her improper remark to the special education student before the entire class, coupled with her tossing a book at him, shocks one's sense of fairness (see generally Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 [1974]), because petitioner's conduct involves a single incident. Petitioner's remark, though improper, was not of a highly inflammatory nature and her actions appear to constitute an isolated incident. The Hearing Officer also found that the book did not hit the student. Furthermore, several of the specifications against petitioner were withdrawn or [*2]dismissed.

The Hearing Officer properly declined to award petitioner attorney's fees pursuant to Education Law § 3020-a(4)(c), in light of the findings that there was some basis for the assertion of each of the specifications against petitioner.

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 28, 2013

CLERK