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

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Matter of Voorhis v New York City Dept. of Educ. 2012 NY Slip Op 30143(U) January 19, 2012 Supreme Court, New York County Docket Number: 103374/11 Judge: Cynthia S. Kern Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. - SCANNED ON 112312012 [* 1] 1 tr / SUPREME COURT .OF THE STATE OF NEW YORK - NEW YORK COUNTY PART INDEX NO. VAN VOORHIS, GREGORY c/ I MOTION DATE MOTION SEQ. NO. NYC DEPARTMENT OF EDUCATION ' SEQUENCE NUMBER : 001 VACATE OR MODIFY AWARD NOtlCe ot Motion/ Order to Show Cause MOTION CAL. NO. n this motion to/for - Affidavlte - Exhlbits ... Answerlng Affidavits - Exhiblts Replying Affidavits Cross-Motion: 0 Yes a I I ... , I . . 0 NO * RECEIVED Upon the foregoing papers, It Is ordered that thls motion ,IAN 2 3 '1012 i decided in accordance with the annexed decision. s MOTION SUPPORT OFFICE NYS SUPREME COURT +ClvlL \ FILED JAN 232Ul2 NEW YORK COUNTY CLERK'S OFFICE ty Dated: J.S.C. 9 n NON-FINAL DISPOSITION Check one: FINAL DISPOSITION Check if appropriate: 0 DO NOT POST a SUBMIT ORDER/ JUDG. REFERENCE 0 SETTLE ORDER/ JUDG. [* 2] GREGORY VAN VOORHIS, Petitioner, Index No. 103374/11 JUDGMENT/ORDER For a Judgment Pursuant to Article 75 of the Civil Practice Law and Rules FILED -against- THE NEW YORK CITY DEPARTMENT OF EDUCATION, JAN 23 2M2 NEW YORK COUNTY CLERK S OFFICE Respondent. Recitation, as required by CPLR 22 19(a), of the papers considered in the review of this motion for : Papers Numbered Notice of Motion and Affidavits Annexed .................................... Notice of Cross Motion and Answering Affidavits....................... Affirmations in Opposition to the Cross-Motion.......................... Replying Affidavits.. .................................................................... Exhibits...................................................................................... 1 2 3 In this Article 75 proceeding, petitioner Gregory Van Voorhis ( petitioner ) seeks to vacate the Opinion and Award of Hearing Officer Mri F. Scheinman Esq. ( Hearing Officer atn Scheinman ) dated February 24,201 1 issued pursuant to Education Law 6 3020-a. The New York City Department of Education (the DOE ) cross-moves to dismiss the petition. This court 1 [* 3] denies the petitioner s request and grants the DOE S cross-motion for the reasons set forth below. The underlying facts are as follows. Petitioner is a tenured teacher employed by the DOE. Petitioner was assigned to teach at the Bronx School of Law and Finance during the 20082009 and 2009-2010 school years. According to respondent, petitioner distributed Guts a sexually explicit short story by Chuck Palahniuk -to his high school students during the 20082009 and 2009-2010 school years without seeking prior approval. It is undisputed that although Outs was listed on the class syllabus which was provided to petitioner s supervisors before it w s distributed to the class, petitioner did not seek specific permission to distribute this story to a his students. The DOE preferred charges against petitioner pursuant to Education Law 5 3020-a for distributing sexually explicit material to his students without obtaining permission f o rm administration. Hearing Officer Scheinman waz assigned to arbitrate the 8 3020-a charges filed against petitioner. Hearings were held in November 2010 during which time the parties were afforded a full opportunity to present witnesses, testimony, exhibits and arguments in support of their respective positions. On February 24,201 1, Hearing Oficer Scheinman rendered his Opinion and Award finding petitioner guilty of poor judgment in distributing Guts to his students without prior consultation and permission f o a supervisor during the 2009-20 10 rm school year. He reasoned that although the story w s listed on the syllabus, it was so explicit in a nature that petitioner should have obtained specific permission fiom his supervisors. The hearing officer issued a penalty of a $7500 fine to be paid in equal monthly installments over a period of eighteen months, On March 17,2011, petitioner commenced the instant petition 2 [* 4] seeking to vacate Hearing Officer Scheinman s award on the basis that it shocks the conscience, is against public policy idringing on the role of teacher and that he exceeded his authority in finding petitioner guilty of distributing material that respondent had knowledge of and failed to object to. Education Law 0 3020-a(5) provides that judicial review of a hearing officer s findings must be conducted pursuant to CPLR 75 11. Under such review an award may only be vacated on a showing of misconduct, bias, excess of power or procedural defects . Lackow v. Dept. of Education o the City ofNew York,51 A.D.3d 563,567 (1 Dept 2008); See The City School f Dist. ofthe Ciw ofNew York v. McGraham, 2010 WL 273191 1 at *4 (July 13,2010, N.Y.App. Div. latDept.). However, where arbitration is mandated by law, as here, judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration. The determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78. The party challenging an arbitration determination has the burden of showing its invalidity. Lackow, 5 1 A.D.3d at 567-568 (internal citations omitted). In the instant action, petitioner has failed to provide any evidence demonstrating misconduct, bias, excess of power or procedural defects. Moreover, Hearing Officer Scheinman s decision was rational and supported by adequate evidence. Accordingly, this court denies petitioner s request for relief under Article 75 of the CPLR and dismisses the proceeding in its entirety. The DOE Scross-motion to dismiss the petition is granted. This constitutes the decision, order and judgment of the court. The clerk is directed to 3 [* 5] enter judgment accordingly. 4 1. . FILED JAN 23 2012 NEW YOAK COUNTY CLERK'S OFFICE 4

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