Matter of Haubenstock v City of New York

Matter of Haubenstock v City of New York 2015 NY Slip Op 05787 Decided on July 2, 2015 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 July 2, 2015
Mazzarelli, J.P., Friedman, Richter, Manzanet-Daniels, Gische, JJ.
15592 651892/13

[*1] In re Eric Haubenstock, Petitioner-Respondent,

v

City of New York Respondent, New York City Department of Education, et al., Respondents-Appellants.

Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for appellants.

Glass Krakower, LLP, New York (Bryan D. Glass of counsel), for respondent.

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered June 18, 2014, which, to the extent appealed from as limited by the briefs, following a hearing, granted the petition to vacate an arbitration award to the extent of vacating the penalty and remanding for determination of a lesser penalty, unanimously reversed, on the law, without costs, and the petition denied. The Clerk is directed to enter judgment confirming the award.

The penalty of termination does not shock our sense of fairness (see Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 560 [1st Dept 2008]). Petitioner committed four separate acts of corporal punishment, in violation of Chancellor's Regulation A-420, which prohibits corporal punishment, defined as "any act of physical force upon a pupil for the purpose of punishing the pupil." Three of these acts occurred after petitioner had been formally warned that any recurrence of his misconduct would result in further disciplinary action and he had been referred to a mandatory training workshop on "appropriate behavior intervention strategies." We find petitioner's misconduct is highlighted by the fact that these pupils were non-verbal autistic children, incapable of protecting themselves or reporting what happened to them.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 2, 2015

CLERK