Dempsey v New York City Dept. of Educ.

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Dempsey v New York City Dept. of Educ. 2012 NY Slip Op 30552(U) February 24, 2012 Supreme Court, New York County Docket Number: 401935/2011 Judge: Robert E. Torres 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. - [* 1] SCANNED ON 31712012 . . SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Jusffco PART a9 ..m Index Number : 4018351201 1 DEMPSEY, LUTHER vs . NYC DEPARTMENT OF EDUCATION SEQUENCE NUMBER : 001 ARTICLE 78 INDW NO. MOTION DATE MOTION 8EQ. NO. I _ The followlng p ~ p s nnumbered 1 to , Notice of MotionlOrderto Show Caurs Anlwerlng AffldrvlQ , were rbrd on thlr m o t h tonor - Affldavlts - Exhlblta - Exhiblts 3 INo(s). 2, (No(B). INOW. Rsplylng Affldavltr - . Upon the foregolng 'papem, It Is ordered that thio motlon lo 1s granted in accordance with the attached decision. This Constitutes the Decisiorl F KdE D Order of the Court. ~. . - 4 A f w 7 2012 - - NEW YOnK COUNTY CLHWOFFICE ,J.S.C. . EI NON-FINAL DISPOSITION . ..................................................................... CASE DISPOSED OTHER DENIED GRANTED IN PART CHECK AS APPROPRIATE: ........................... MOTION IS: GRANTED SUBMIT ORDER CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE 1. CHECK ONE: 2. 3. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK, PART 29 PRESENT: HONORABLE ROBERT E. TORRES, J.S.C. LUTHER DEMPSEY, MAR 07 2012 OUNJY NEW YORK CLERKIS OFFICE Petitioner INDEX NUMBER:40 193 5/2011 -against- Present: HON. JWBERT E. TORRES THE NEW YORK CITY DEPARTMENT OF EDUCATION, and DENNIS WALCOTT, as Chancellor of the New York City Department of Education, Respondents. Petitioner bring the instant petition for an Order reversing respondentNew York City Department of Education (hereinafter DOE ) s determination denying petitioner s application for certification as a school bus driver as arbitrary, capricious, and on abuse of discretion or, in the alternative, as unsupported by substantial evidence; declaring that Respondents violated Correction Law Q 752 and 5 753, Executive Law § 296(15) and New York City Administrative Code 5 8-107(10) by unfairly discriminating against Petitioner because of his prior criminal offenses; issuing an Order directbig respondent to approve petitioner s application to be certified a DOE school bus driver; awarding back pay and other damages incident to the primary relief sought in this petition; and awarding attorney fees and costs. The Respondent NYCHA answers the Notice of Petition and requests that the petition be dismissed in its entirety. The relevant record herein reveals that petitioner, an experienced school bus driver licensed by the New York State Department of Motor vehicles to drive school buses, applied for certification to drive a bus from DOE: Petitioner submitted said application on request of hisemployer, Thomas Buses-Inc.. DOE denied the petitioner s application based on his past criminal convictions. Notably, petitioner s most recent conviction was in 1993. As a result of DOE S denial, petitioner s employment was terminated. InNovember, 2006, petitioner and three other school bus drivers and one school bus escort, who were also employed by Thomas Buses Inc., brought an Article 78 proceeding against the DOE and [* 3] Thomas Bus Inc. challenging the denials of their application. All denials were due to past criminal convictions. After lengthy litigation, the appellate division, first department issued a decision reversing the lower court; remanding the matter to DOE; and directing that petitioners be given rn opportunity to review the information upon which DOE S determinations were based and to submit statements and documents pursuant to Chancellor s regulation C-105. Subsequently,petitioner was interviewed by DOE on February 24,201 1. By letter dated March 17,2011, the DOE denied petitioner certification once again. Petitioner s attorney sent DOE a letter, dated March 29,201 1, requesting a written statement pursuant to section 754 of the Correction Law, setting forth the reasons the DOE denied petitioner permission to transport its students. By letter dated May 4,20 1 1, DOE detailing the reasons for said denial. Petitioner now brings the instant petition. Article 78 of the C.P.L.R. provides for limited judicial review of administrative actions. aig Administrative agencies enjoy broad discretionary power when m k n determinations on matters they are empowered to decide. Section 7803 of the C.P.L.R. provides in relevant part that [tlhe only questions that may be raised in a proceeding under this article are... 3 . whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measwe or mode of penalty or discipline imposed; or 4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence. In deciding whether an agency s determination was supported by substantial evidence or was arbitrary, capricious or an abuse of discretion, the reviewing court is limited to assessing whether the agency had a rational basis for its determination and may overturn the agency s decision only if the record reveals that the agency acted without having a rational basis for its decision. See, fIeintz v, m, N.Y.2d 998,1001 (1992) citing Pell-v.Board of Rducationr34-N.Y.2d222,230~31 80 (1974); Sullivan c- ans o re H Racing Association v. Glassey, 30 N.Y.2d 269, 277 (1972). Substantial evidence is more than bare surmise, conjecture, speculation or rumor and less than a preponderance of the evidence. 300 Gramatan Av . . ts Associates v. State QiyiS of Hurnan& d~ ,45N.Y.2d176, ion Petition submits said decision, Jn Re Hasbeny, et a]. v, NYC DO&, et al, Index Number 405070/2006 as Exhibit T of the petition. [* 4] 180 (1978). Substantial evidence consists of such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact. Id. See, also Consolidated Rdison v. New York State m yN.Y .2d 4 11,417 (1991). Where the Court finds the agency s determination is supported 77 by facts or reasonable inference that can be drawn f o the record and has a rational basis in the law, rm it must be confirmed. American Telephone and Telemaph Co. v. State Tax Commissiom, 61 N.Y.2d - 393,400 (1984). The arbitrary and capricious test chiefly related to whether a particular action should have been taken or is justified.. . asd whether the administrative action is without foundation in fact, P, supra, quoting 1 N.Y. Jur., Administrative Law, 5184, p. 609. The reviewing Court does not e J examine the facts de novo to reach an independent determination. maHanlev, 50 A.D.2d 687. Furthermore, a Court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary, unreasonable and an abuse of discretion. Pell, supra. Upon a review of the forgoing papers, the Court finds that petitioner s Article 78 petition must be granted as the respondent DOE s determination denying petitioner s application for certification as a school bus driver was arbitrary and capricious. On Article 78 review, this Court is limited to assessing whether the agency had a rational basis for its determination. The Court finds that DOE failed to consider all eight factors as set forth in section 753 of the Correction Law. A review of the papers, demonstrates that Respondent only considered petitioner s criminal history when reviewing his application and failed to consider his extensive evidence of rehabilitation. Petitioner s last conviction was eighteen years ago and he obtained a certificate of relief from disabilities. DOE, in part, relied, on aan arrest in 1971 and 1974. However, it should be noted that those matters were dismissed.2Moreover, respondent states that petitioner was denied in part because he did not provide any community recommendations yet he was never asked to submit said documents. Respondent also alleges that petitioner was less than truthful in his application, however, fails to support said claim by identifying the alleged untruthfulness. Finally, although respondent failed to identify the alleged gap in petitioner s employment-history,respondent argues that said gap is one of the factors considered id-making its determination. These records are more than sufficient to make a showing of substantial evidence and for a finding that the respondent DOE s determination was without foundation in fact. m,supra, Accordingly, it is ORDERED that the instant petition is granted to the extent that respondent DOE s determination See, Criminal History Report, submitted as Exhibit C of DOE S opposition hereto. [* 5] is hereby annulled as arbitrary and capricious, and it is further ORDERED that respondent DOE approve petitioners' application for to be a certified DOE school bus driver, it is further ORDERED that remaining issues are hereby remanded back to DOE. This constitutes the decision and order of this Court. Dated: February 24,2012 Hon. Robert E Torres . ROBERT E. TO= JUDGE FILED MAR 07 2012 NEW YORK COUNTY CLERKS OFFICE

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