Matter of Merenstein v Board of Educ. NYC Sch. Dist.

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Matter of Merenstein v Board of Educ. NYC Sch. Dist. 2012 NY Slip Op 32844(U) October 18, 2012 Sup Ct, New York County Docket Number: 111208/2011 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 121312012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK P - . * ? p a 1 . - NEW YORK COUNTY q PART ~ - h PRESENT: Justice Index Number : 11 1208/2011 MERENSTEIN,JUDITH INDEX NO. vs. - MOTION DATE BOARD OF EDUCATION SEQUENCE NUMBER : 001 MOTION SEQ. NO. ARTICLE 78 MOTION CAL. NO. The following papers, numbered 1 to 3, were read on this motion to/f@ /I.@ i<qW M DLm PAPERS NUMBERED Notice of Motion/ Order to Show Causg - Affidavits - Exhibits ... I z Answering Affidavits - Exhibits Replying Affidavits . 3 . B Yes Cross-Motion: 0 No * Upon the foregoing pape.rs, it is ordered thatAMun&wm - . FILED NEW YORK COUNTY CLERK'S OFFICE . Dated: 1131Jf1J3- Lq*+?P LUCY EiLLiMGS 0 FINAL DISPOSITION E N Check if appropriate: 0 DONOTPOST Check one: - 0 J. S.C. < [* 2] In the Matter of the Application of JUDITH MERENSTEIN, Index No. 111208/2011 Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules - against - DECISION AND ORDER BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, in his official capacity as CHANCELLOR of the CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Remondents APPEARANCES: NOV 13 2012 For Petitioner Richard Casagrande Esq. Pamela Patton Fynes Esq. 5 2 Broadway, New York, NY 10004 NEW YORK CLERK'S OFFICE For Respondent Mario Frangiose, Assistant Corporation Counsel Benjamin Traverse, Assistant Corporation Counsel 100 Church Street, New York, NY 10007 LUCY BILLINGS, 5.: I. FACTUAL AND LEGAL BACKGROUND Petitioner, a tenured teacher, claims h e r reassignment to Public School (P.S.) 121 from P.S. 177, both in t h e same Community School District in Kings County, after disciplinary charges against her were dismissed, was arbitrary and in violation of New York Education Law a ( 4 ) (b). merenstn.143 C.P.L.R. 3 7803(3), §§ 2590-j(8) and 3020- Respondents move to diismiss her 1 [* 3] petition based on its failure to state a claim for relief. C.P.L.R. §§ 3211(a) ( 7 ) ' 7 8 0 4 ( f ) . Education Law § 2566(6) empowers respondent Chancellor to "transfer teachers from one school to another." This broad power, however, still must be exercised free of malice, bad faith, and prejudice. Alderstein v. Board of Educ. of C i t y of N.Y. 64 N.Y.2d 90, 101 (1984). Education Law § 2590-h(19) empowers respondent Chancellor to delegate any of his powers to subordinate officers. Nevertheless, insofar as a Community Superintendent is empowered to transfer a teacher involuntarily, Education Law restricts the Superintendent's power. § 2590-J(8) The Community Superintendent may transfer a tenured teacher without her consent due to disciplinary action only when she has been found guilty of charges. N.Y. Educ. Law § 2590-](8). The petition alleges that Children First Network (CFN) 409, a human resources management network within respondent Board of Education of t h e City School District of the C i t y of New York, of which both P . S . 121 and P.S. 177 are members, informed petitioner that she was restored to a teaching position at P.S. 121, rather than P . S . 177, after her acquittal of disciplinary charges. Respondents contend that CFN 409 is an entity to which the Chancellor delegated his power to transfer teachers from one school to another. N.Y. Educ. Law 5 5 2566(6), 2590-h(19). Yet nothing in the record at this point establishes that the Chancellor delegated that power to CFN 409 for the purpose of merenstn.143 2 [* 4] assigning petitioner or even that CFN 409 in fact made the transfer determination. Nor do respondents establish that a CFN is not restricted, similarly to a Community Superintendent, to transferring a tenured teacher only following a determination upon charges unfavorable to the teacher. T h e petition alleges, and respondents do not dispute, that when CFN 409 issued the decision reassigning petitioner the CFN 409 Leader was Neal Opromalla. Opromalla had been the Local Instructional Superintendent for P.S. 177, issued the unsatisfactory evaluation of petitioner that served as the grounds for the disciplinary charges against her, and testified at h e r administrative hearing in support of the evaluation and charges that were not sustained. 11. ARBITRARINESS BASED ON BIAS Even assuming respondent Chancellor delegated his reassignment power to CFN 409, an assumption the petition does not adopt, these facts at minimum show that he delegated the authority to determine petitioner's fate after t h e disciplinary proceedings to the initiator of those proceedings and t h e witness who supported a determination against petitioner. This showing creates a perception undermining t h e fairness or impartiality of the determination to reassign petitioner and s t a t e s a claim that the determination was arbitrary. AS the advocate in favor of the disciplinary charges against petitioner, Opromalla would be disqualified from adjudicating those charges. Beer Garden v. New York State L i q . Auth., 79 merenstn.143 3 ... [* 5] N.Y.2d 266, 278 (1992); Rosenblum-Wertheim v. New York State Div. of Human Riqhts, 213 A.D.2d 231, 232 (1st Dep't 1995); State Div. of Human Riqhts v. Dorik's Au Natural Rest., 203 A.D.2d 163, 164 (1st Dep't 1994). Serving as both prosecutor and adjudicator presents at minimum an appearance of unfairness, partiality, or bias t h a t requires recusal. General Motors Gorp.-Delco Prods. Div. v. Rosa, 82 N.Y.2d 1 8 3 , 188 (1993); Beer Garden v. New York State Liq. Auth., 79 N.Y.2d at 279; State Div. of Human Riqhts v. Dorik's Au Natural Rest., 203 A.D.2d 163. While Opromalla did not serve as the hearing officer who heard and determined the disciplinary proceedings against petitioner, t h e circumstances s t i l l show that, after the charges he prosecuted were dismissed, he then stepped in to achieve a result unfavorable to petitioner in any event. This dual participation states a claim of partiality that disqualified him from determining her assignment upon restoration to teaching service and rendered the determination biased and arbitrary, which would require a vacatur of that determination and a remand to respondent Chancellor to delegate the determination to an impartial decisionmaker. Corninq Glass Works v. Ovsanik, 84 N.Y.2d 619, 626 (1994); General Motors CorD.-Delco Prods. D i v . v. Rosa, 82 N.Y.2d at 190; Deluxe Homes of Pa. v. State of New York Div. of Human Riqhts, 205 A.D.2d 394 (1st Dep't 1994). 111. A R B I T W R I N E S S BASED ON THE ABSENCE OF A REASON Respondents' transfer decision is irrational, arbitrary, and therefore unsustainable if it is "without sound basis in reason" merenstn.143 4 [* 6] or "without regard to the facts." P e l 1 v. Board of Educ., 34 N.Y.2d 2 2 2 , 231 (1974). See Goodwin v. Perales, 88 N.Y.2d 383, 392 (1996); Soh0 Alliance v. New York State Liq. Auth., 32 A.D.3d 363 (1st Dep't 2006). Respondents suggest that t h e transfer was based on a conflict between petitioner and administrators of P . S . 177 resulting from her acquittal of disciplinary charges. First, this potential reason is equally suggestive of a biased decision because Opromalla resented her acquittal and the hearing officer's rejection of Opromalla's charges and testimony urging otherwise. Second, and once again, nothing in the record at this point establishes that an objective determination of a conflict or any other reason formed the basis for the transfer. Moreover, the time that has elapsed since 2007, when the disciplinary charges first were instituted and petitioner immediately was reassigned from P . S . 177, and the likely personnel changes over that time undermine t h e plausibility that any prior conflict persists. IV. CONCLUSION Consequently, t h e court denies respondents' motion to dismiss t h e petition based on i t s failure to state a claim. C.P.L.R. §§ 3211(a) ( 7 ) , 7 8 0 3 ( 3 ) , 7804 ( f ) Respondents shall serve any answer within 30 days after service of this order with notice of entry. See C.P.L.R. §§ 3012(a), 3211(f), 7804(c). Petitioner shall serve any reply within 20 days after service of an answer. See C.P.L.R. §§ 3012(a), 7804(c) and ( d ) . After expiration of the reply period, petitioner may set a further rnerenstn.143 5 [* 7] 4 h e a r i n g on t h e p e t i t i o n by a new notice of t h e p e t i t i o n o r by an order t o show cause, in which event t h e p a r t i e s a r e t o d e l i v e r t h e i r answer and reply t o t h e c o u r t a t 7 1 Thomas S t r e e t , Room 2 0 4 , and t h e c o u r t , a f t e r a f u r t h e r e x t e n t of r e l i e f t o be g r a n t e d . DATED: hearing, will determine t h e C.P.L.R. 5 s 7803, 7806. October 1 8 , 2 0 1 2 L I mv s I l y r LUCY BILLINGS, J.S.C. rnerenstn.143 6

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