Matter of Haas v New York City Bd./Dept. of Educ.
2012 NY Slip Op 30863(U)
April 4, 2012
Sup Ct, NY County
Docket Number: 110190/11
Judge: Carol R. Edmead
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NNED ON41512012
[* 1]
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT:
L_)ION.CAROL EDMEAD
PART
Justlo
x
Index Number : 110190/2011
H M S , DIANA
INDEX NO.
vs.
NYC BOARD/ DEPT. OF EDUCATION
SEQUENCE NUMBER : 001
MOTION DATE
MOTION
167 ’
sea. NO.
VACATE OR MODIFY AWARD
Motion sequence 001 is decided in accordance with the annexed
Memorandum Decision. It is hereby
ORDERED that the cross motion to dismiss the petition is
denied; and it is further
ADJUDGED that the petition is granted to the extent that the
July 20, 2011 decision of hearing officer Joshua M. Javits is
vacated, only to the extent of the penalty imposed, and the matter
is remanded to a different hearing officer for a determination of
the penalty, o n t h e basis of the administrative record, taking no
account of any evidence that petitioner sought to enlist the a i d of
her co-workers in relation to covering up the conduct charged in
specification one; and it is further
ORDERED t h a t counsel for respondent shall serve a copy of this
order with notice of entry within twenty (20) days of entry on
petitioner.
1. CHECK ONE:
‘ HoN.CA
k
.....................................................................
2. CHECK AS APPROPRIATE:
3. CHECK IF APPROPRIATE:
...........................
MOTION IS:
................................................
WMNTED
DENIED
SEffLE ORDER
DO NOT POST
ORANTED IN PART
OTHER
0SUBMIT ORDER
FIDUCIARY APPOINTMENT
REFERENCE
[* 2]
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: I A S PART 35
X
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I _ _ _ - - - - - - - - -
In the Matter of the Application of
DIANA HAAS,
Petitioner,
For a Judgment Pursuant to Article 75
of the C . P . L . R .
Index No. 110190/11
-against -
THE NEW YORK CITY BOARD/DEPARTMENT OF
EDUCATION,
Respondent.
X
____________--______--------------------CAROL R. EDMEAD, J . S . C . :
Petitioner Diana Haas brings this proceeding p r o s e , pursuant
to Education Law 5 3020-a and CPLR 7511, to vacate the J u l y 20,
2011 decision of hearing officer Joshua M. Javits terminating her.
Respondent The New Y o r k C i t y Board/Department of Education ( B o a r d )
cross-moves to dismiss the petition.
The Board charged petitioner, a then-tenured teacher at P.S.
270 in Queens, with two specifications arising out of an incident
that occurred on October 29, 2009. The f i r s t specification alleged
that petitioner pulled a chair out from underneath student A (K.),
told him to sit on the f l o o r , and then repeatedly k i c k e d him.
K.,
at that time, was a four-year-old boy with special needs.
The
second specification alleged that, on the same d a t e ,
petitioner
directed the other students in the class not to discuss what they
had seen.'
The Hearing Officer sustained both charges.
The Hearing Officer's statement of the specifications
mistakenly refers to October 24, 2009, and includes a typographical
e r r o r , stating t h e s u b j e c t matter of the first specification as
occurring in 2019.
[* 3]
E d u c a t i o n Law S 3 0 2 0 - a
an
(5) provides that a court's review of
application to vacate or modify the decision of a hearing
officer is limited to the grounds set forth in CPLR 7511, the
provision pertaining to review of arbitrators' awards.
established,
however,
that,
because
5
3020-a
It is now
hearings
are
compulsory, the hearing officer's "'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 7 8 .
McGraham,
''I
C i t y School
75 A D 3 d 4 4 5 ,
450
Dist.
of
(1st Dept 2 0 1 0 ) ,
( 2 0 1 1 ) , quoting L a c k o w v Department of E d u c .
of N . Y . ,
the
C i t y of N . Y .
affd
v
17 NY3d 917
(or ''Board") of C i t y
51 AD3d 563, 567 (1st Dept 2 0 0 8 ) , citing Motor Veh. Mfrs.
A s s n . of U . S . v S t a t e of N e w York, 7 5 NY2d 175, 1 8 6 ( 1 9 9 0 ) .
As an initial matter, petitioner argues, citing M a t t e r of
Garzilli v Mills
(250 AD2d 131 [3d Dept 1 9 9 8 ] ) , that s h e was
deprived of her right to due process, and that the Hearing Officer
lacked authority to c o n d u c t
the hearing, because the charges
against her were preferred by the school's principal, rather than
by a v o t e of the New Y o r k C i t y Board of Education.
5 3020-a
Education Law
(2) (a) provides that, where charges are made against a
tenured teacher, "the employing board'' is to determine by majority
vote
"whether probable
cause exists to bring
a
disciplinary
In Matter of G a r z i l l i , the C o u r t
proceeding" against the teacher.
held that the petitioner was entitled to a writ of prohibition
barring the continuation of disciplinary proceedings against her,
because, at the time that the superintendent of the community
2
[* 4]
school district in which the petitioner's school was located had
determined that there was probable cause to charge the petitioner,
Education Law
§
2590-j (7) vested a l l authority with regard to
trials of c h a r g e s against tenured teachers in the school board of
each community district, rather than in the superintendent.
However, in 1998, Education Law
§
2590-h was amended to add
subsection 38, which vested in the chancellor of the N e w York City
school district the power and duty
'I
[t]o exercise a11 of the duties
and responsibilities of the employing board as set forth in
[§
. ..
staff of
schools under the jurisdiction of the community boards."
L 1998 c
3020-a]
with respect to any member of the teaching
385 5 5.
Education Law 5 2590-h
(38) also provides that the
chancellor "may delegate the exercise of all such duties and
responsibilities to all of the community superintendents of the
city district."
On August 19, 2002, the chancellor delegated "to
the community school district superintendents t h e authority to
prefer charges against tenured pedagogical employees pursuant to
Education [Law] section 3 0 2 0 - a
Education Law
§
...
-'I
Welikson Affirm., Exh. D.
2590-f (1) (b) g i v e s community superintendents the
power "to delegate any of h e r or his powers and duties to such
subordinate officers or employees of her or his community district
as she or he deems appropriate
...
.I'
On August 27, 2007, Lenon
Murray, the community superintendent of community s c h o o l district
29, which includes P . S .
270, delegated to each principal of a
school within t h e district the power to
charges against teaching
...
"
[i]nitiate and resolve
staff members in your school who have
3
[* 5]
completed probation
...
. " Welikson Affirm. , Exh. E. Accordingly,
the Hearing Officer was authorized to conduct the Education Law 5
3020-a
proceeding on the basis of the charges preferred by the
principal of petitioner's school.
New York City B d . / D e p t .
of E d u c . ,
See
M a t t e r of Simons-Koppel v
2 0 1 1 WL 3556808, 2011 NY Misc
L E X I S 3905, 2011 NY Slip O p 32160(U) (Sup Ct, NY County 2 0 1 1 ) .
The fact that the respective delegations by the chancellor and
by Mr. McMurray were authorized by statute does not foreclose
petitioner's argument that her right to due process was violated by
the delegation of the power to prefer charges to her principal.
But see Matter of Soleyn v New York City D e p t . of E d u c . , 3 3 Misc 36
1211(A), 2011 NY
Slip Op
( S u p Ct,
51897(U)
NY
County 2 0 1 1 )
(delegation to principal did not violate due process, because
ultimate fact finder was a neutral decision maker).
although
petitioner
disagreements
asserts
concerning
the
that
she
proper
and
the
number
of
However,
principal
students
had
in
petitioner's c l a s s , and the allocation of funds to that class, and
also contends that the administration of the school had an interest
in forcing out highly p a i d teachers, petitioner does not contend
that she did not receive adequate notice of the charges against
her, or that the principal had no basis for making the charges.
Accordingly, petitioner has not shown that her right to due process
of law was violated by the delegation to her principal of the power
to prefer charges.
Petitioner called no witnesses at her hearing, other than
herself.
Petitioner testified that, on the day of the incident,
4
[* 6]
she asked K. to sit in his chair properly, because he was dangling
from it, with one hand in the air and the other on the f l o o r .
She
then briefly l e f t her classroom to c a l l the parent of one of her
students, and while she was on her phone in the hall, she heard
Upon re-entering, she found
screaming in her classroom.
Almara Harris, one of the two paraprofessionals who worked with
petitioner, standing by the sink in the b a c k of the classroom and
yelling, because K. had licked her.
Numerous witnesses called by respondent testified, however,
that
they
encountered
K.,
shortly
thereafter,
weeping
uncontrollably and repeatedly crying out that petitioner had k i c k e d
him.
In addition, Ms. Harris testified that K. was short for his
age,
and that when he sat his legs extended straight o u t from his
chair, rather than bending at the knees. Accordingly, when he was
agitated and fidgeted, his legs would s t r i k e whoever was in their
path.
M s . Harris testified that, on the day of the incident, she
heard petitioner scream "you're touching me with your feet again,
'I
and she had then seen petitioner pull K.'s chair out from under him
and kick him repeatedly, after he had fallen to the f l o o r .
other paraprofessional
assigned to petitioner's
The
class, Olinda
Ramirez, testified that she had been working i n another part o f the
room with a group of children, and had heard petitioner scream
"Don't kick me.
I told you not to k i c k me.,'' and shortly
thereafter, "You're not sitting in your chair.
just
sitting on the f l o o r . ' '
You're just--now,
Ms. Ramirez then turned toward
petitioner and saw K. getting up from the floor, trying to grab his
5
[* 7]
chair, putting one hand u p in front of him in a fist and pointing
with the other hand at petitioner while crying out "NO more, Ms.
Haas,
No more.''
Welikson Affirm., Exh. B at 256-257.
With regard to specification two, Ms. Ramirez testified that
student S. told her that petitioner had told the class that K. had
been kicked by another student, and that they should not speak to
anyone about what had happened.
Petitioner's main argument is that the Hearing O f f i c e r erred
in crediting the evidence of respondent's witnesses, rather than
hers.
"It is basic that the decision by an Administrative Hearing
Officer to credit the testimony of a given witness is largely
unreviewable by the c o u r t s
436, 443
NY2d
(1987).
. ..
.'I
Matter of Berenhaus v Ward, 7 0
"'[Clredibility determinations are the
province of the Hearing Officer."'
C i t y Bd./Dept. of E d u c . ,
Matter of D o u g l a s v N e w Y o x k
8 7 AD3d 856, 857 (1st Dept 2011), quoting
Matter of D ' A u g u s t a v Bsatton, 259 AD2d 287, 2 8 8 ((1st Dept 1999).
Here, the Hearing Officer found that the testimony of respondent's
witnesses was credible and that petitioner's testimony was not
credible. Those findings are sufficiently supported in the record
of the administrative hearing for the court not to second-guess
them.
Petitioner also argues that the Hearing Officer was biased
against her, improperly based his award on hearsay, failed to issue
the award within 30 days of the last day of the final hearing, as
required by
Education Law 5 3020-a
shocking to the conscience.
6
( 5 ) , and imposed a penalty
[* 8]
An
allegation
of
bias
against
an
established by clear and convincing p r o o f .
York
City
Tr.
Auth.,
45
484
AD3d
arbitrator
must
be
Matter of Moran v New
(1st Dept 2007); M a t t e r of
I n f o s a f e S y s . [ I n t e r n a t i o n a l Dev. P a r t n e r s ] , 2 2 8 AD2d 2 7 2 (1st Dept
1996). Petitioner's claim of bias rests on her assertions that t h e
Hearing Officer sustained the charges, without any testimony by K.;
that he refused to accept petitioner's full binder of "anecdotals,"
a book in which petitioner recorded behavioral problems of her
students; and that he sustained the charges, although there was
some evidence that, rather than petitioner having kicked K., K. had
kicked petitioner, o r another student had kicked K.
As stated above, K. was a f o u r - y e a r - o l d
special-needs child.
As discussed above, respondent introduced numerous witnesses who
testified that they heard K. say that petitioner had kicked him,
and one witness who testified that she had seen petitioner kicking
K.
Accordingly, the Hearing O f f i c e r had sufficient evidence upon
which to base his determination, even in the absence of testimony
from K.
Moreover, petitioner could have subpoenaed K., had she
believed that his testimony would have aided her.
She did not do
so.
With regard to the book of anecdotals, petitioner agreed to
redact the book in o r d e r to protect the privacy of the students,
other than K., and in order to protect K.'s privacy in regard to
matters, such as his toilet habits, that were irrelevant to the
proceeding.
See Welikson Affirm., Exh. B at 1020-1021.
As
accordingly redacted, the anecdotals were admitted into evidence.
7
[* 9]
The fact that the Hearing Officer credited the testimony that
petitioner had kicked K., although there was some evidence, in
addition to petitioner's denial, that was at variance with that
conclusion, is not evidence of bias, especially where there was
testimony that the latter evidence had been suggested to the
students by petitioner.
In sum, petitioner has failed to show any
partiality on the part of the Hearing Officer.
'"Hearsay
evidence can be the basis of an administrative
determination' and,
if
sufficiently
York S t a t e L i q .
Auth.,
it
alone may
Matter of C a f & La C h i n a Corp. v
constitute substantial evidence."
New
probative,
4 3 AD3d
280, 281
(1st Dept 2 0 0 7 ) ,
quoting Matter of G r a y v Adduci, 7 3 N Y 2 d 7 4 1 , 742 (1988). Here,
numerous witnesses testified that K. r e p e a t e d l y and agitatedly
stated that petitioner had kicked him.
evidence
was
corroborated
by
the
Moreover, that hearsay
of
testimony
Ms.
Harris,
summarized above.
CPLR 7507 provides, in relevant part, that " [ a ]
party waives
the objection that an award was not made within the time required
unless [the party] notifies the arbitrator in writing of [the
party's] objection prior to the delivery of the award to [the
party] . "
Petitioner made no such notification.
Moreover, the
violation of a regulatory deadline for rendering a decision offers
no grounds for substantive relief.
Matter of Dicklnson v Daines,
15 NY3d 571 (2010).
Turning, finally, to petitioner's challenge to the penalty
that the Hearing
Officer
imposed, the
8
court
does not
find
[* 10]
M a t t e r of M u r r a y v M u r p h y , 2 4 NY2d 1 5 0 , 1 5 7 ( ( 1 9 6 9 ); see a l s o Wolfe
v Kelly,
79 AD3d
406
(1st Dept
2010); M a t t e r
Environmental Control Bd. of C i t y of N . Y . ,
1991).
of Sulzer
v
165 AD2d 270 (1st Dept
Accordingly, the Hearing Officer's decision imposing the
penalty of termination cannot stand, because it appears to be
based, in significant p a r t , on evidence of wrongdoing that was not
charged.
Accordingly, it is hereby
ORDERED that the cross motion to dismiss the petition is
denied; and it is further
ADJUDGED that the petition is granted to the extent that the
July 20, 2011 decision of hearing offices Joshua M. Javits is
vacated, o n l y to the extent of the penalty imposed, and the matter
is remanded to a different hearing o f f i c e r for a determination of
the penalty, on the basis of the administrative record, taking no
account of any evidence that petitioner sought to enlist the aid of
her co-workers in relation to covering up the conduct charged in
specification one; and it is further
ORDERED that counsel for respondent shall serve a copy of this
order with notice of entry within twenty (20) days of entry on
petitioner.
Dated: April 4 , 2012
, HON, CAROL EDMEAQ
10
