Matter of Haas v New York City Bd./Dept. of Educ.

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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 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. 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

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