Richards v Board of Educ. of the City School Dist. of the City of NY

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Richards v Board of Educ. of the City School Dist. of the City of NY 2012 NY Slip Op 31539(U) May 31, 2012 Sup Ct, New York County Docket Number: 104257/11 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. SCANNED ON 611212012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY LUCY BlLLlNGS PRESENT: J.S"C, PART 46 Justlce -V- MOTION DATE MOTION 8EQ. NO. w' wm a n,numbered I to .3 , were read on thlrp+Jmtoff' foli0wP8= Notice ofJdetiun/Order to Show Cause Affldavlta Exhlbltr - Anrwerlng Affldavltm / - INo(*). - Exhlbltn 1-2 3 (No(s). IWd. Replying Affldavlttt UNFILED JUDGMENT This iudqrnent has not been entered by the County Clerk and notice of entry cannot be served based hereon. - obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Roonr 141B. ) < Dated: 51 3' - Y U q W I y S ,J.S.C. &.u c y E;; LLE! f '. 4 ..................................................................... d CASE DISPOSED 0N O ~ S I N A L DISPOSITION 2. CHECK AS APPROPRIATE: ........................... MOTION IS: c3 GRANTED [z) DENIED RANTED IN PART OTHER 3. CHECK IF APPROPRIATE: ................................................ SElTLE ORDER 0SUBMIT ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT REFERENCE I - CHECK ONE: [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 4 6 _ _ _ _ _ _ _ _ _ - - - _ I _ _ _ _ - - _ _ _ _ _ l _ _ --X _ _ _ _ KAMEISA RICHARDS, _ _ l _ Index No. 104257/2011 Petitioner DECISION AND ORDER - against BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK and CATHLEEN BLACK, in her official 141B). APPEARANCES : For Petitioner Richard Casagrande Esq. By: Eric W. Chen Esq. and Kevin A. S i l l s Esq. 52 Broadway, New York, NY 10004 For PegDondents Corporation Counsel of the City of New York By: Adam E. Collyer, Assistant Corporation Counsel 100 Church Street, New York, NY 1 0 0 0 7 LUCY BILLINGS, J.S.C.: Petitioner seeks to reverse.respondents termination of petitioner s probationary employment and respondents unsatisfactory rating of petitioner s performance as a teacher for the 2009-2010 school year. She claims that respondenta determination violated procedures prescribed in their handbooks and in the Collective Bargaining Agreement (CBA) between respondent Board of Education and petitioner s labor union, the United Federation of Teachers, and was arbitrary and capricious. C.P.L.R. § richards.139 7803(3). Respondents move to dismiss the petition on 1 [* 3] t h e grounds that reversal of t h e termination is barred by the applicable statute of limitations, and petitioner fails to state a claim for reversal of her unsatisfactory rating. C.P.L.R. §§ 217 (11, 3211 (a)( 5 ) and ( 7 ) , 7803 (3), 7804 (f) . I. THE PBTITION TO REVIEW THE TEWINATION OF PROBATIONARY EMPLOYMENT I$ TIME-BARRED. This court may not review respondents' termination of petitioner's probationary employment because more than four months e l a p s e d between her receipt of respondents' notice dated July 1 6 , 2007, terminating that employment, and h e r commencement of this proceeding. C.P.L.R. 5 217(1); Kahn v. New YQrk City Dent. of Educ., 18 N.Y.3d 457, 462 (2012); Anderson v. Klein, 50 A.D.3d 296 (1st Dep't 2008); FriedAand v. New YQgk Citv Dept. ~f Educ., 39 A.D.3d 395, 396 (1st Dep't 2007); Lipton v. New York C i t y Bd. of Educt, 284 A.D.2d 140, 141 (1st Dep't 2001). Therefore the court proceeds t o review respondents' further action that petitioner challenges: an unsatisfactory rating (U- rating) for the 2009-2010 school year. Kahn v, New York Citv Dept. of E d u c . , 18 N.Y.3d at 470. 11. RESPONDENTS' U-MTING AND AFFIRMANCE OF THE U-RATING WERE ARBITRARY AND CAPRICIOUS. Although respondents' failure to establish binding procedures for evaluating teachers may violate lawful procedure, C.P.L.R. 5 7803 (3); 8 N.Y.C.R.R. 100.2 ( 0 ) (1)(iii) (a)( 2 ) , the court may not vacate respondents' evaluation of petitioner based on their violation of the Board of Education's Division of Human Resources Handbook, "Rating Pedagogical Staff Members." Brown v. richards.139 2 [* 4] Board of Fduc . of t h e City School Dipt. of the City of N , Y , , A.D.3d 486, 488 (1st Dep't 2011). 363 (2d Dep't 2 0 0 9 ) . Cf 89 Blaize v. Klein, 32 A.D.3d Nonetheless, petitioner preaents admissible evidence of respondents' contractual obligation to provide p r e observation discussions or conferences as part of the evaluation process. This evidence consists of authenticated copies of t h e CBA and of the guidebook, "Teaching for the 21st Century,11 which respondents do not controvert. V. Pet. Ex. E, at 50-51, CBA art. 8, 5 8J; Ex. G, at 29. Respondents affirmed petitioner's U-Rating, not only without substantial evidence, b u t without any evidence whatBoever contradicting the testimony by petitioner that Bhe never received a pre-observation discussion or conference. 66. Ex. C, at 59-60, Although petitioner's principal testified regarding the standard procedure at their school, neither he nor anyone else testified whether that procedure was followed in petitioner's case, nor did respondents produce any o t h e r evidence that petitioner received pre-observation discussions or conferences. I . at 23-24. Because respondents affirmed her U-rating without d any evidence contradicting her testimony that s h e did not receive the required pre-observation discussion or conference, respondents' determination is Ilwithout sound basis in reason," "without regard to the facts,11 and therefore arbitrary. Pel1 v. Board of Educ., 34 N.Y.2d 222, 231 (1974). & Goodwin v. Peraleq, 88 N.Y.2d 383, 392 (1996); Soho Alliance v. New YQrk S t a t p Lia, Auth., 32 A.D.3d 363 (1st Dep't 2006). richards.139 3 [* 5] z 111. CONCLUSION For the foregoing reasons, the court grants respondents' motion to dismiss the petition insofar as it seeks review of petitioner's termination from probationary employment, but denies the motion insofar as the petition seeks review of her U-rating for the 2009-2010 school year, and remands the proceeding to respondents for a new determination of her rating f o r that year. Because the court does not disturb respondents' determination to terminate petitioner's probationary employment, and no party indicates any incompleteness in the administrative record already preeented to support the petition and the motion, the court perceives no purpose in proceeding further in this forum with an answer to the petition. See C.P.L.R. § § 409(b), 7804(f), 7806; Nassau BOCES Cent, Council af Teacher@ v. Board of Coop . Educational Servs. of Nassau County, 63 N,Y.2d 100, 102-103 (1984); CamachQ v. Kelly, 57 A.D.3d 297, 299 (1st Dep't 2008). If any party Beeke to show such a purpose, that p a r t y may move, by an order to show cause, to restore this proceeding. Otherwise this decision constitutes this court's judgment granting the petition to the extent set forth, denying the remainder of the petition, and dismissing the proceeding. C.P.L.R. § § 7803(3), 7806. DATED: May 31, 2012 L - %J Ly LUCY BILLINGS, J.S.C. Main entry, cou~;sel or authorized representative must appear in person at the Judgment Clerk's Desk (Rooni 141R). t

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