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

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Matter of Brower v New York City Dept. of Educ. 2012 NY Slip Op 30597(U) February 21, 2012 Supreme Court, New York County Docket Number: 113843/2010 Judge: Lucy Billings 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. 4NNED ON 311212012 [* 1] SUPREME COURT f r OF THE STATE OF NEW YORK . '"h r ,n ' PRESENT: \ , PART %5 . A Justice -. - Number. 1 1384312010 INDEX NO. BARU A, I , MOTION DATE MOTION SEQ. N O . OF EDUCATION MOTION CAL. SEQUENCE NUMBER : 001 NO. - ARTICLE 78 1 _- - NEW YORK COUNTY .- 1 this motion tolfor PAPERS NUMBERED . I - Notice of Motion/ Order t o Show Cause Answering Affidavits - - Exhibits - Atfiaavits - - txhibits ._ Replying Affidavits ... 1 z _ - 3-3 "_ Cross-Motion: n Yes No UNFILED JUDGMENT This judgment has not k e n cn:crd by the County Clerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Rwm 1416). Dated: L-7 a /Iz Js*'ly 5 ; h G L IF LALLe 1 n r- 4 ." , J Check one: Ivf FINAL DISPOSITION Check if appropriate: 1 1 J. S. C. J.S,C. NON-FINAL DISPOSITION r DO N O T POST l L -1 SUBMIT ORDER/ JUDG. b.0 I ! SETTLE L I REFERENCE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YOHK COUNTY OF NEW YORK: PAHT 46 In the Matter of the Application of BAR1 A. BROWER, Index No. 113843/2010 Petitioner against - DECISION AND ORDER - NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPEARANCES : For Petitioner N o a h Kinigstein Esq. 3 1 5 Broadway, New York, NY UNFILED JUDGMENT This udgment has not been entered by the County Clerk and- lice of entry carina1 be served based hereon. To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room 1416). b 10007 For Respondent Jeremy Huntone, Assistant Corporation Counsel 100 Church Street, New Y o r k , NY 10007 LUCY BILLINGS, J.S.C.: This proceeding s e e k s to reverse respondent's unsatisfactory rating of petitioner's performance as a teacher, its termination of her probationary employment as a teacher, and ita revocation of h e r license to teach first through sixth grades. I. THE PETITION TO REVIEW THE TERMINATION OF PROBATIONARY EMPLOYMENT IS TIME-BARRED. This court may not review respondent's termination of petitioner's probationary employment because more than four months elapsed between her receipt of respondent's notice dated July 16, 2007, terminating t h a t employment, and h e r commencement of this proceeding. N.Y.3d ~ Kahn v . New York City Dept. of Educ., - , N.Y.L.J. 1202542278544, at *2, 18-19 (Feb. 14, 2012); 1 [* 3] Anderson v . Klein, 50 A.D.3d 296 (1st Dep't 2008); Friedland v . New York City Dept. of E d u c . , 39 A.D.3d 395, 396 (1st Dep't 2007); Lipton v . New York City Bd. of Educ., 284 A.D.2d 140, 141 (1st Dep't 2 O O l ) , Therefore the court proceeds to review respondent's further actions that petitioner challenges: an unsatisfactory rating for the 2006-2007 school year and the revocation of h e r teachi-ng license. Kahn v. New Yorlc City Dept. of Educ. , - N.Y.3d -, N.Y.L.J. 1,202542278544,at "9 n.3, 16. 11. RESPONDENT'S FAILURE TO PRODUCE A COMPLETE RECORD OF THE ADMINISTRATIVE PROCEEDINGS REQUIRES A REMAND. Respondent's failure to preserve and provide a complete record of its administrative hearing on the unsatisfactory rating and revocation violated ita o w n regulatory procedures. § C.P.L.R 7803(3); N.Y.C. Dept. of Educ. Chancellor's Regulation C-31 3.2.4. § Respondent's inability to produce a hearing transcript, in violation of lawful procedures, requires the court to annul respondent's determination and remand the proceeding for a new hearing to be conducted in compliance with those procedures. C.P.L.R. § 7804(e). E.q.,Costantino v. Goord, 38 A.D.3d 657, 658 (2d Dep't 2007). This result is especially w a r r a n t e d because the Interim Acting Deputy Chancellor, who made the final decision that both terminated petitioner's probation and rated her performance unsatisfactory, precipitating revocation of her license, did n o t attend the hearing. Based solely on the incomplete transcript , he nonetheless reversed the unanimous recommendation of the Chancellor's Cotnmittec, who heard t h e evidence, not to terminate 2 [* 4] petitioner's license. Thus the incomplete record not only precludes the court's adequate review, but also precluded the Interim Acting Deputy Chancellor from making a decision upon consideration of the full record. Lacking that adequate and necessary basis, his final administrative decision was arbitrary as well as in violation of the Chancellor's Regulations. C.P.L.R. § 7 8 0 3 ( 3 ) ; Goodwin v. Perales, 88 N.Y.2d 383, 392 (1996); Purdy v. Kreisberq, 47 N.Y.2d 354, 358 (1979); Pel1 v. Board of Educ., 34 N.Y.2d 222, 231 (1974); Soho Alliance v. New York State Liq. Auth., 32 A.D.3d 363 (1st Dep't 2006). 111. REVOCATION OF PETITIONER'S TEACHING LICENSE IS AN EXCESSIVE PENALTY. Respondent imposed the severe penalty, beyond termination of petitioner's probation, of revoking her teaching license. The Interim Acting Deputy Chancellor imposed this penalty against the hearing committee's unanimous recommendation, after a single official Observation following petitioner's mid-year transfer- into a new grade and more difficult class, which had lacked a permanent teacher and been covered by various substitute teachers. Petitioner received a satisfactory rating after her only prior official observation, with her prior class. Neither the determination July 16, 2007, by the Community Superintendent f o r petitioner's school district, nor the June 15, 2007, notice of the review and consideration of discontinuance, specified absenteeism as a basis for petitioner's unsatisfactory rating or f o r revoking her license or discontinuing her employment. Nor do the determinations by the Chancellor's 3 [* 5] Committee and the Interim Acting Deputy Chancellor refer to absenteeism. Insofar as the Interim Acting Deputy Chancellor based his decision on "file documents and testimony, which may refer to absenteeism, such a belated and obscure reference hardly constitutes timely or adequate notice to petitioner of t h e charges against her. V. Answer Ex. 14. Due process requires that petitioner "be given notice of the charges and evidence a g a i n s t [ h e r ] and an opportunity to appear Strom v. Erie County P i s t o l Permit Dept., to rebut the charges, 6 A.D.3d 1110, 1111 (4th Dep't 2004); to p r e p a r e adequately to defend t h e charges; and l1to submit proof in response." v. Allesandro, 19 A.D.3d 500, 501 (2d Dep't 2 0 0 5 ) . Pacicca See Wolfe v. Kelly, 79 A.D.3d 406, 410 (1st Dep't 2010); Mayo v. Personnel Review Bd. of Health & Hosps. C o r p . , 65 A.D.3d 470, 472-73 (1st Dep't 2009); Gordon v. LaCava, 203 A.D.2d 290, 291 (2d Dep't 1994); Benson v , Board of Educ. of Washinqtonville Cent. School Dist., 183 A.D.2d 996, 997 (3d Dep't 1992). In particular: In t h e context. of an administrative hearing, the charges need to be "reasonably specific, in light of a l l the relevant circumstances, to apprise the party whose rights are being determined of the charges against him . . . and to allow f o r the preparation of an adequate defense" . . . Wolfe v. Kelly, 79 A.D.3d at 410 (quoting Block v. Ambach, 73 N.Y.2d 323, 333 (1989)). Even if wrongdoing is shown by the evidence, if that wrongdoing was not charged, it may n o t furnish a reason f o r revoking petitioner's license or for related adverse 4 [* 6] 245 A.D.2d 1106 (4th Dep't 1997). Respondent's reliance in this proceeding on petitioner's absenteeism or f a i l u r e to report her absenteeism timely, as a justification for her rating and license revocation, similarly constitutes an impermissible post hoc rationalization. New York State Ch., Inc., Associated Gen. Contrs. of Am. v. New York State Thruway Auth. , 88 N.Y.2d 56, 75 (1996); L&M B u s Corp. v. New York City Dept.. of E d u c . , 71 A.D.3d 127, 135 (1st Dep't 20091, aff'd as modified on other qrounds, 17 N.Y.3d 149, 159 (2011); Missionary Sisters of Sacred Heart, Ill. v . New York State Div. of Hous. & Community Renewal, 283 A.D.2d 284, 287-88 (1st Dep't 2001); 72A Realty Assocs. v. New York City Envtl. Control Bd., 2'15 A.D.2d 284, 286 (1st Dep't 2000). "It is impermissible for respondents to raise issues in a court proceeding t h a t were not raised on the record at t h e time" of the administrative determination. AAA Cartinq and Rubbish Removal, I n c . v. Town of Southeast, 17 N.Y.3d 136, 143 n.4 (2011). Based on the notices to petitioner, respondent b o t h assessed petitioner's performance and revoked her license to teach first through sixth grades upon one observation after she had taught the first grade f o r three months, following her prior kindergarten c l a s s . Her competence to teach the second, third, f o u r t h , fifth, and sixth grades has never been assessed. Respondent's penalty is thus grossly disproportionate to three months of unsatisfactory performance teaching the first grade, even if respondent upon remand redetermines to rate her 5 [* 7] performance unsatisfactory. Featherstone v. Franco, 95 N.Y.2d 540, 554 (2000). See Duryea v. New York City Housinq Authority, 85 A.D.3d 653 (1st Dcp t 2011.); Wonq v. McGrath-McKechnie, 271 A.D.2d 321-22 (1st Dep t 2000). IV. CONCLUSION For the foregoing reasons, the court g r a n t s t h e petlition to the extent of vacating the Interim Acting Deputy Chancellor s decision dated June 22, 2010, and remands this proceeding to respondenr for a n e w hearing on petitioner s unsatisfactory rating and the imposition of a penalty, if any, short of revoking her teaching license. If upon remand respondent determines to rate her performance satisfactory, respondent also may redetermine the termination of her probation, insofar as the termination flowed from the prior unsatisfactory rating. Kahn v. New York City Dept. of Educ., - N.Y.3d -, N.Y.L.J. 1202542278544, at *19; Erasier v. Board of Educ., 71 N.Y.2d 763, 765, 767-68 (1.988). N.Y.3d , N.Y.L.J. - Kahn v. New York City Dept. of E d u c . , 1202542278544, at *5, 12. the remaining relief sought in the petition. T h e court denies This decision constitutes the court s order and judgment on the petition. C.P.L.R. § § 7803(3), 7806 DATED: February 21, 2012 UNFILED JUDGMENT LUCY BILLINGS, J.S.C. This Iudgment has not been entered by the County Clerk and notice of entry cannot be served based hereon. TO obtain entry, counsel or authorized rcpresentative must appear in person at the Judgment Clerk s Desk (Room 141B . ) 6 I LUCY BEkLff4Gsi J.S.C.

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