Matter of Ajeleye v Department of Educ. of the City of N.Y.

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Matter of Ajeleye v Department of Educ. of the City of N.Y. 2012 NY Slip Op 30646(U) March 13, 2012 Supreme Court, New York County Docket Number: 104886/11 Judge: Judith J. Gische 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] -Sequence Number : 001 'ARTICLE 78 1 I [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: I A S PART 10 h a i d o n , Ordmr md Judgrnant Index No. : 104886/11 Seq No. : 001 X ----I_II-------cc-_---------------- In t h e Matter of the A r b i t r a t i o n and C e r t a i n Controversies Between JOSEPH AJELEYE, P e t it i o n e r , Present: JI-on. Judith J. Gische For an Order Pursuant to Article 75 and 78 of the CPLR J.S.C. - against- THE DEPARTMENT OF EDUCATION OF ' T H E CITY OF NEW YORK, THE CITY SCHOOL D I S T R I C T OF THE CITY OF NEW YORK AND THE CITY OF NEW YORK, and, DAVID HYLAND, HEARING OFFICER, Respondents. _ 1 1 _ 1 - X Recitation, as r e q u i r e d by CPLR § 2219 [ a ] of the papers considered in the review of this ( t h e s e ) motion(s): Papers Not of Pet and Pet w/SLK v e r i f , exhs . . . - Notice of x / m (dismiss) w/SK affirm, exhs . . Pet opp to x/m and f u r t h e r support . - . . . . Resps' r e p l y and further support w/SK affirm . N e r d 1 2 3 4 .. .. - . .. _____----______---I-1c__________________----------------------~~~ JUDITH J. QISCHE, J.: Petitioner Joseph A j e l e y e moves, pursuant t o CPLR 7511, for an o r d e r v a c a t i n g an a r b i t r a t i o n award made after a disciplinary h e a r i n g h e l d pursuant to Education Law § 3020-a, in which petitioner was terminated from h i s employment w i t h respondent The Department of Education of the C i t y of New York (the DOE). The DOE, The C i t y School D i s t r i c t of t h e C i t y of New York and the Page k of 19 [* 3] C i t y of New Yorkl ( c o l l e c t i v e l y , DOE) cross-move to dismiss the petition, pursuant to CPLR 3211 ( a ) (71, 4 0 4 ( a ) , and 7511. The DOE also seeks an order confirming the award, pursuant to CPLR 7511 ( e ) . B.AcKGmWm AND EKTuAIl ALLEQATIrnS Up until his termination from employment i n April 2011, petitioner worked as a Chemistry t e a c h e r at a h i g h s c h o o l in N e w York, New York. P e t i t i o n e r was a tenured employee, and had been working for the DOE since 1997. For the 2008-2009 s c h o o l year, pursuant to Education Law 5 3020-a, the DOE served p e t i t i o n e r with "specifications," or charges, a l l e g i n g that, w i t h i n the school year, petitioner "engaged in verbal abuse, inappropriate conduct, and conduct unbecoming to his profession. " Officer's Opinion and Award, a t 2 . w i t h three s p e c i f i c a t i o n s , Exhibit A, Hearing DOE'S The DOE charged p e t i t i o n e r two of which are as follows: Specification 1: On or about and between September 2008 through J a n u a r y 2009, Respondent referred to s t u d e n t ( a ) as being : a ) Liar(s). b) Anirnal(a), c ) Cheater(a). d ) Niggers(s). e) B m s ( s ) . f) Ghetto. 9 ) Lazy. S p e c i f i c a t i o n 2: On or about and between September 2008 ' P e t i t i o n e r i n c o r r e c t l y proceeds againet the City of N e w York, which is not a proper party in this proceeding. Page 2 of 19 [* 4] through January 2009, Respondent s t a t e d in sum and substance to students t h a t : a ) In his c o u n t r y people are more d e d i c a t e d . b) Americans are l a z y . c) B l a c k Americans are l a z y . d) Americans are spoiled. e ) Americans have no values. f) A f r i c a n s are going to take over. g) A f r i c a n s are from the Motherland and have n o t forgotten their c u l t u r a l roots in contrast to i g n o r a n t B l a c k Americans. h) Africans have better study habits. i) Nigerians are smarter t h a n you. j) A f r i c a n s are better in Math and S c i e n c e . k) My dogs could do math and science b e t t e r than you1) You Americans are l i a r s and cheats. Id. at 2-3. The t h i r d specification alleged that petitioner read the students' grades o u t loud in the classroom. Pursuant to Education Law S 3020-a, a hearing began on December 16, 2010 to determine the outcome of the charges. Hearing Officer E. David Hyland, E s q . (Hearing Officer Hyland) wa8 appointed to preside over the proceedings. A p r e - h e a r i n g conference t o o k place on December 16, 2010. A f t e r t h i s date, the DOE served petitioner with additional charges, alleging t h a t petitioner engaged in "insubordination, neglect of duly, and conduct unbecoming his p r o f e s s i o n . " 4. Id. a t These specifications were consolidated into the same hearing, and an a d d i t i o n a l p r e - h e a r i n g conference took place an January 14, 2011. P e t i t i o n e r did not want the charges c o n s o l i d a t e d , claiming that he was not given time to review the additional charges. Despite the o b j e c t i o n by petitioner to consolidation of the Page 3 of 19 [* 5] charges, Hearing Officer Hyland decided that it was proper, pursuant to the parties collective b a r g a i n i n g agreement, to c o n s o l i d ate the chargea. The Hearing Officer believed that, because both sets of charges i n c l u d e d miaconduct, r a t h e r than incompetence, petitioner would not be prejudiced, n o r would he be denied a fair hearing on the charges. The Hearing Officer additionally maintained t h a t petitioner s counsel would be permitted to have additional time, if necessary, to review t h e new materials provided to h e r - One of the additional s p e c i f i c a t i o n s , which is representative of the o t h e r s , 1s l i s t e d as follows: Specification 3: On or about December 18, 2008, Respondent prevented Assistant Principal J e n n i f e r Hodge from serving an observation of h i s class by engaging in the following misconduct: 1. blocking access to the classroom. 2 . grabbing the observation report document. 3 . ripping up the observation r e p o r t document. 4 . throwing t h e observation report into t h e garbage. 5. p o i n t i n g his middle f i n g e r toward Amsistant P r i n c i p a l Hodge. 6. slamming t h e door in Assistant Principal Hodge s 5 ace Id. at 4 . A hearing took p l a c e over s i x days, where both parties were entitled to examine and cross-examine witnesses and submit evidence. In his decision, Hearing Office Hyland indicated that this case began w i t h complaints by parents about verbal abuse and grading techniques. He continued that the school s p r i n c i p a l initiated an investigation by contacting t h e Office of Special [* 6] Investigations (OSI). Among other witnesses, Hearing Officer Hyland heard testimony from Assistant Principal Hodge (Hodge) with respect to the insubordination charges. For instance, Hodge testified t h a t prior to conducting an observation of petitioner, she attempted to n o t i f y petitioner with a written notice to attend a pse- observation conference. According to Hodge, when she gave the notice to petitioner, in f r o n t of another witneaa, petitioner crumpled up the paper and t h r e w it in t h e garbage. Hodge continyed that, after s h e actually oberarve'd his classroom, she attempted to give him an observation r e p o r t . As she attempted to give him the report, p e t i t i o n e r "ripped up the document in front of [ h e r ] and said words to the effect 'why art you so desperate? You are n o t getting enough?' while pointing at her w i t h his middle f i n g e r . " Id. at 15. When she walked away, p e t i t i o n e r slammed the classroom door s h u t . Hodge also t e s t i f i e d that petitioner refused to meet with some parents who requested conferences with him. These parents also complained a b o u t p e t i t i o n e r and asked that t h e i r children be removed from h i 8 class. Hodge recalled an incident where one of petitioner's students requested to use the bathroom. allow the s t u d e n t to use the bathroom. Petitloner refused to The student, who had been diagnosed w i t h cancer, could not wait and left t h e classroom to Page5 of 19 [* 7] use the bathroom. She was d e n i e d access back i n t o the classroom when she returned. The s t u d e n t then returned back to the classroom w i t h the Dean, who explaihed to petitioner why the student left the claasroom and demanded t h a t petitioner allow t h e student back i n t o t h e classroom. Petitioner refused to allow the student back into the classroom, stating that she would d i s r u p t the class. When the student entered the classroom, p e t i t i o n e r walked out. Among other witnesses, five students provided testimony regarding petitioner's behavior in the classroom. By way of example, one of the students t e s . t i f i e d that i f a s t u d e n t was being loud and not working, petitioner would ask, "why are you guys SO lazy? You're supposed to be d o i n g your work s t u d e n t s i n Africa would appreciate education more guys who are so spoiled." Id. at 27. ... and ... unlike you This s t u d e n t recalled t h e i n c i d e n t where the fellow s t u d e n t was not allowed to use the bathroom. He a l s o recalled t h a t petitioner used to call s t u d e n t s "ghetto" and also used to t e l l the students that they were " l i a r s and cheaters." Id. at 28. In h i s defense, a s t u d e n t t e s t i f i e d that they never heard p e t i t i o n e r make comments similar to " N i g e r i a n s are smarter." at 4 7 . Id. Despite indicating t h a t she did not learn any chemistry while in petitioner's clas9roorn, the student also t e s t i f i e d t h a t she b e l i e v e d petitioner was a good teacher, and that if s h e d i d Page 6 of 19 [* 8] not learn anything, it was due to the students' misbehavior in the classroom, not petitioner's teaching. P e t i t i o n e r denied most of t h e s t u d e n t allegations regarding h i s use of language. a He c o n t i n u e d that he never called a student Petitioner did mention that he compared schools in liar. Nigeria to ones in America, but o n l y when t h e students asked him about Africa. Petitioner e x p l a i n e d that he grew up in a Nigerian v i l l a g e and moved to the United States in 1995. admit that he refused to attend R Petitioner, did parent/teacher meeting, g i v i n g t h e reason that he did n o t want to miss lunch for t h i s meeting. With respect t o the bathroom i n c i d e n t , petitioner responded t h a t no one had ever t o l d him anything about that student's particular need for t h e restroom. He t e s t i f i e d that the principal stated to him, " l f l l fire you today." Id. at 5 8 - In reaponse to ripping up documents from Hodge about h e r observations, petitioner contends t h a t he asked f o r time to read the documents, and this request was denied. P e t i t i o n e r conceded that he d i d read t h e students' grades out loud in class but s t a t e d t h a t he was asked by the students to do so. In response t o t h e s t u d e n t s ' testimony, petitioner contended that a l l of these s t u d e n t s had disciplinary or anger problems. During the course of t h e hearing, among other things, counsel far p e t i t i o n e r maintained t h a t Hearing Officer Hyland Page 7 of 19 [* 9] should not be using t h e preponderance of the evidence standard, b u t must a p p l y t h e clear and c o n v i n c i n g evidence standard. Counsel also indicated that the p r i n c i p a l d i d n o t deny making certain comments to p e t i t i o n e r , look for o t h e r work. such as that petitioner should Counsel continued that the OS1 investigation was flawed and t h a t the students' testimony was n o t credible Hearing Officer Hyland sustained some b u t not a l l of the specifications, using t h e preponderance of t h e evidence standard. He began by stating that, a l t h o u g h he did believe t h a t OS1 conducted an imperfect investigation, it was fair and objective. H e found that the testimony elicited from the student witnesses by both OS1 and himself w a s credible. Hearing Officer Hyland did not f i n d petitioner to be a credible or r e l i a b l e witneaa, nor did he find petitioner's student's testimony to be credible. Hearing Officer Hyland concluded t h a t p e t i t i o n e r waa "clearly on notice that Chancellor's Id. a t 72. Regulations e x i s t ..* ,I He continued w i t h the following, in p e r t i n e n t part: Some of t h e charged misconduct need not even reference a Chancellor's Regulation. Professionally t r a i n e d teachers should be independently aware t h a t referring t o students as l i a r s , animals, cheaters, n i g g e r s , bums, ghetto o r lazy is a t b e s t a poor classroom management strategy and, more importantly, is discriminatory, degrading and insulting to students. Id. at 72-73. Page 8 of 19 [* 10] For each s p e c i f i c a t i o n , Hearing Officer Hyland went t h r o u g h t h e f a c t s as presented to him by both p a r t i e s . He found t h a t the DOE had proven mo8t of t h e verbal abuse chargeB a g a i n s t F o r example, for specification 2 (i), Hearing petitioner. Officer Hyland set forth the following conclusions: Nigerians are smarter than you. J.R. testified t h a t he heard [petitioner] address his class w i t h this statement. M.R.'s hearsay statement was slightly d i f f e r e n t b u t tends to corroborate J.R.'s testimony. I credit J.R.'s testimony. Again, [ p e t i t i o n e r ] denied ever making such a remark. However, given the t o t a l i t y of [petitioner's] testimony, it is plausible he made such a statement. I conclude t h e remark was made and, accordingly, this sub s p e c i f i c a t i o n is s u s t a i n e d . i) Id. at 7 9 . Hearing O f f i c e r Hyland also noted t h a t where he found misconduct, he "did so because the evidence met a preponderance standard and was actionable conduct based on the applicable r e g u l a t i o n s and o r d i n a r y atandards if conduct expected of Teacher8." I d . at 7 4 . J- Hearing Officer Hyland a l s o concluded that, given the testimony, it was c l e a r t o him that p e t i t i o n e r was insubordinate. In his determination, Hearing Officer Hyland explained how the cases c i t e d by counsel for p e t i t i o n e r were not a p p l i c a b l e to t h e present s i t u a t i o n . On March 31, 2011, Hearing Officer Hyland determined that petitioner ehould be terminated front his t e a c h i n g Page 9 of 19 [* 11] p o s i t i o n as a r e s u l t of the charges. In his comprehensive 93- page d e t e r m i n a t i o n , he concluded by stating: I do n o t believe [petitioner's] behavior will improve if he is returned to a classroom. The proven misconduct warranter dismissal from service. Again, for c l a r i t y ' s s a k e , the sub s p e c i f i c a t i o n s I have found proven and actionable constitutes [sic] j u s t cause f o r discipline, including dismissal from service under Education Law S e c t i o n 3020-a, conduct unbecoming [petitioner's] position or conduct p r e j u d i c i a l to the good order, efficiency, or discipline of the service and n e g l e c t of duty in addition to being in v i o l a t i o n of cited Chancellor's regulations. I d . at 92. P e t i t i o n e r contends that he received the determination on April 13, 2011. S h o r t l y thereafter, petitioner f i l e d t h i s i n s t a n t proceeding, both under Article 75 and 78, seeking to vacate the award and returning the petitioner to his teaching position. Among other t h i n g s , p e t i t i o . n e r c o n t e n d s t h a t the decision should n o t be upheld by the W E as it was rendered to him a f t e r the 30-day time limit set f o r t h i n Education Law S 3020-a (4) (a). Petitioner further alleges that Hearing Officer Hyland improperly used t h e standard of preponderance of the evidence- Petitioner claims t h a t the DOE wa8 supposed to conduct a public meeting a f t e r the Hearing Officer's d e c i s i o n had been rendered. Petitioner additionally m a i n t a i n s that the Hearing O f f i c e r d i d not take into consideration the principal's Page 10 of 19 bias [* 12] and/or v e n d e t t a a g a i n s t petitioner. F'urthermore, the penalty af termination was a l l e g e d l y too harsh, given petitioner's unblemished record. Petitioner mentions many alleged violations of his due process,'including the fact that he wag unable to prepare for the second s e t of specifications. He a l s o alleges t h a t many af the Petitioner l e t t e r s used as evidence were n o t p a r t of the file. further claims t h a t the OS1 investigation was biased. DISCUS8 ION In an e f f o r t to "faster the u s e of a r b i t r a t i o n as an alternative method of s e t t l i n g disputes," the court's role in reviewing an arbitrator's award is "severely limited, " C i v i l Serv. Empls. A s s n , , Local 1000, AFSCME, M L - C I O Matter of (Albany Hous. A u t h . ) , 266 AD2d 676, 677 (3d Dept 1999), q u o t i n g Matter of N e w York S t a t e Department of Taxation & Finance [Public mployees F e d n ] , 241 AD2d 780, 781 ( 3 d Dspt 1997); see also Matter of Goldfinger v Lisker, 68 NY2d 225, 230 (1986). P u r s u a n t to Education Law 5 3020-a (5), CPLR 7511 provides the basis of review of an arbitrator's findings. Lackow v Department of Education ( o r "Board") of C f t y of N. Y., 51 AD3d 563, 567 (Irnt Dapt 2008). CPLR 7511 limits t h e grounds for v a c a t i n g an award to "misconduct, b i a s , excess of power or p r o c e d u r a l defects [ i n t e r n a l q u o t a t i o n marks and c i t a t i o n omitted]." Page 11 of 19 Id. [* 13] However, where, as here, the p a r t i e s are s u b j e c t e d to compulsory arbitration, the Appellate Division, Firtsrt Department, has held that judicial scrutiny is greater t h e n when parties voluntarily arbitrate, Id. The a r b i t r a t i o n award muqt be "in accord w i t h due process and supported by adequate evidence, and must also be r a t i o n a l and s a t f a f y the arbitrary and c a p r i c i o u s standards of CPLR article 7 8 . " Id.2 The burden of showing an invalid award is on t h e person challenging the award. r t vi0 Id. a Many of petitioner's problems with the determination stem from alleged administrative/procedural v i o l a t i o n s . For example, p e t i t i o n e r believes that the investigations into his misconduct were not done properly since they were i n s t i g a t e d by t h e principal. He further maintains t h a t he wus never summoned to the principal's office a f t e r the allegations of v e r b a l abuse, Since he was never made aware of these allegations, ha could never respond in writing. He mentions secret files that he was not aware o f , which were allegedly introduced f o r the first time at petitioner's h e a r i n g . According to petitioner, t h e introduction of these allegedly aecret f i l e 3 a't the hearing, a3 well as the second set of charges, purportedly v i o l a t e d Nevertheless, petitioner' EI appeal is c o r r e c t l y brought pursuant to CPLR 7511, not 78. See E d u c a t i o n Law § 3020-a (5). Page 12 of I 9 [* 14] due proceas. petitioner's start of the hearing, Hearing O f f i c e r Hyland decided A t the to consolidate all of the charges since they were similar and it would not be violative of petitioner's collective bargaining "The notice due procless requires is n o t i c e reasonably agreement. c a l c u l a t e d , under all of the circumstances, to apprise t h e interested p a r t i e e of the pendency of the action and a f f o r d them an opportunity to present their objections.'' People v Ramos, 85 NY2d 678, 683-684 (1995). Counsel for p e t i t i o n e r was advised t h a t she would be able to take additional t h e , r e v i e w the new discovery. if necessary, to As such, the court f i n d s that the petitioner was not prejudiced in any way and was n o t deprived of due process. Hearing Officer Hyland d i d acknowledge that t h e OS1 investigation had some flaws, but that it was f a i r and o b j e c t i v e . He also mentioned petitioner's files, o b j e c t i o n s to o t h e r alleged secret Upon review of t h e record, the court does not find t h a t the DOE nor the a r b i t r a t o r committad any administrative violations during the course of petitioner's Moreover, "courts must defer to an administrative hearings, agency's investigations and r a t i o n a l interpretation of i t s own regulations in its area of expertise." Matter of Peckham v Calogcro, 12 NY3d 4 2 4 , 431 ( 2 0 0 9 ) . Page 13 of 1 9 [* 15] Petitioner additionally maintains t h a t Hearing Officer Hyland should have applied t h e clear and convincing evidence test However, petitioner i s m i s t a k e n . to.hfs hearing, As s a t f o r t h by the Court of Appeals, "[plrepondarance of the evidence, and n o t s u b s t a n t i a l evidence, is the proper standard of proof to be applied by a h e a r i n g p a n e l in determining whether,disciplinary charges b r o u g h t pursuant to Education Law S 3020-a have been established," Matter of Martin v M a c h , 67 NY2d 975, 977 (1986) AB such, petitioner c a n n o t e s t a b l i s h a valid ground for vacating t h e award due to administrative or procedural violations. I i c I Q us: Petitioner claims that Hearing Officer Hyland's d e t e r m i n a t i o n was irrational and a r b i t r a r y and c a p r i c i o u s . Specifically, petitioner contends t h a t t h e principal was b i a s e d against petitioner and that there w a s i n s u f f i c i e n t evidence to find that p e t i t i o n e r had committed any of the specifications, All of these issues were presente,d to the Hearing Officer and discussed by him as p a r t of the determination. A n action is considered arbitrary and capricious 'when it is taken w i t h o u t sound b a s i s i n r e a s o n o r regard t o the facts." Matter of Peckham v Calogaro, 12 NY3d at 431. Page 140f 19 An arbitration [* 16] award is considered i r r a t i o n a l if t h e r e is "no proof whatever to j u s t i f y the award ... ." Matter of Peckerman v D & D Associates, 165 AD2d 289, 296 ( l m t Dept 1991). Applying both standards to the present case, i t was n o t i r r a t i o n a l f o r Hearing O f f i c e r Hyland to terminate petitioner based on the testimony and evidence. A f t e r Hearing Officer Hyland reviewed the record and listened to testimony, he determined that petitioner was g u i l t y of some specifications but not others. Hearing O f f i c e r Hyland, in his l e n g t h y determination, went through every specification and sub part and explained b o t h parties' arguments and why he believed t h e y could be s u b s t a n t i a t e d or not. Petitioner was found g u i l t y of verbal abuse, s p e c i f i c a l l y r e f e r r i n g to his students a s " l i a r s , cheaters, niggers, bums, ghetto and lazy.'' Petitioner did not deny refusing to meet w i t h a parent, refusing to t a k a an observation r e p o r t from Hodge, refusing to allow a student to r e t u r n t o t h e classroom after his aupervisor instructed t h a t he do so, and reading his students' grades out loud, among o t h e r things. Hearing Officer Hyland did not f i n d the p e t i t i o n e r to be a reliable w i t n e s s , nor did he find the student testimony on petitioner's b e h a l f to be credible. A f t e r listening to the other administrative professionals and students who were familiar w i t h Page 15of 19 [* 17] p e t i t i o n e r , Hearing O f f i c e r Hyland credited their testimony, including the testimony of the p r i n c i p a l , as to petitioner's direct violations of t h e Chancellor's Regulations and other common-sen& pr,ofessional ideals prohibiting verbal abuse and misconduct. It is well s e t t l e d t h a t a hearing o f f i c e r h a s the authority to determine th'e credibility of the witnesses. As the Court s t a t e d in Lackow v Department of Education (or "Board") of C i t y of h7.Y. (51 AD3d at 568), ' [ a ] hearing o f f i c e r ' s determinations of credibility, however, are l a r g e l y unreviewable because the h e a r i n g officer observed the witnesses and was a b l e to perceive the i n f l e c t i o n s , the pauses, t h e glances and gecltures - all t h e nuances of speech and manner that combine to form an impression of either candor or deception [internal q u o t a t i o n marks and citation omitted] ." An administrative sanction, ouch as petitioner's puniahment, "must be upheld unless it shocks the j u d i c i a l conscience and, therefore, c o n s t i t u t e s an abuse of discretion a s a matter of law." M a t t e r of Featherstone v Franco. 95 NY2d 550, 554 (2000). P e t i t i o n e r argues that the penalty of termination is shocking since he had an unblemished record and he was a dedicated professional. However, t h i s court does n o t conclude that the penalty of Page 16 of 19 [* 18] termination shocks one's S ~ B B of fairness. Hearing Officer Hyland was aware of petitioner's p r i o r service before issuing his decision t h a t petitioner should be terminated. Nevertheless, he recommended that petitioner's behavior and misconduct warranted termination. A f t e r reviewing the record and l i s t e n i n g to testimony, Hearing Officer Hyland concluded t h a t he d i d n o t b e l i e v e that petitioner's behavior would improve if petitioner was returned t o the classroom. As one C o u r t noted, "even a long and previously unblemished record does n o t foreclose diSmi88al from being considered as an appropriate sanction [ i n t e r n a l quotation marks and c i t a t i o n s o m i t t e d ] . " Matter of Rogers v Shexburne-Earlvf l l a Central School D i s t r i c t , 17 AD3d 823, 824-825 (3d Dept 2005). P e t i t i o n e r argues that, s i n c e he received his decision after 30 days from the last date of the hearing, the d e c i s i o n does n o t ( a ) , and must n o t be comply with E d u c a t i o n Law § 3020-a ( 4 ) considered by the DOE. Education Law § 3020-a ( 4 ) (a) states, in p e r t i n e n t part, "[tlhe hearing o f f i c e r s h a l l render a written decision w i t h i n t h i r t y days of the last day of the f i n a l hearing ... . I# S e c t i o n 7507 of the CPLR, which govern8 t h e arbitrator's award in question, states the following, in p e r t i n e n t part: [* 19] the award shall be in writing, signed and affirmed by the arbitrator making it w i t h i n the time f i x e d by the agreement, or, If t h e time is not fixed, w i t h i n such time as t h e court orders. The parties may in writing extend t h e t h e e i t h e r before or after i t s expiration. A party waives the objection t h a t an award was not made w i t h i n t h e time required unless he n o t i f i e s the a r b i t r a t o r in writing of his o b j e c t i o n p r i o r to the delivery of the award to him. In the p r e s e n t case, t h e hearing concluded on February 9, 2011. Hearing Officer Hyland rendered his decision on-March 31, 2011. Petitioner received this award on April 13, 2011, P e t i t i o n e r does not provide evidence, nor even a l l e g e , that he notified Hearing O f f i c e r Hyland of h i s objection prior to t h e delivery of the award, pursuant to CPLR 7507. As such, the award cannot be vacated on this premise. Award: Accordingly, petitioner's denied in it3 request to vacate the award is entirety, and the DOE'S cross motion to dismiss the petition, and to confirm the arbitration award, is granted. The court has considered petitioner's other contentions and f i n d s them without merit. C ~ C L U S I O N , ORDER m s[JDGwENT Accordingly, it is hereby ADJUDGED t h a t t h e petition is denied and t h e proceeding is dismissed; and it is f u r t h e r Page 18 of 19 [* 20] ORDERED that the cross motion of the respondents The Department of Education of t h e C f t y of New York, The C i t y School District of the C i t y of N e w York and the City of N e w York, is granted fn i t s e n t i r e t y , dismissing the p e t i t i o n and confirming the a r b i t r a t i o n award. I Dated: New York, New York March 13, 2012 ENTER: - + + Hon. J u d i UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice o entry cannot be served based hereon. TO f obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room 1416). Page 19 of 19

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