Matter of Adolphe v New York City Bd. of Educ.

Matter of Adolphe v New York City Bd. of Educ. 2011 NY Slip Op 08203 Decided on November 15, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 15, 2011
Mazzarelli, J.P., Catterson, Moskowitz, Renwick, Abdus-Salaam, JJ.
6020 115047/09

[*1]In re Marsiste Adolphe, Petitioner-Appellant,

v

New York City Board of Education, Respondent-Respondent.




Valli Kane & Vagnini, LLP, Garden City (Robert J. Valli, Jr.
of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Julie
Steiner of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about May 19, 2010, dismissing the petition to vacate an arbitration award dated October 16, 2009, unanimously affirmed, without costs.

Petitioner failed during the arbitration proceeding to preserve his argument that his First Amendment rights were violated. As a result, and contrary to petitioner's contention on appeal, the issue was improperly raised for the first time in his petition before the court (see Matter of Migdal Plumbing & Heating Corp. [Dakar Devs.], 232 AD2d 62, 64 [1997], lv denied 91 NY2d 808 [1998]). Were we to consider this argument, we would find it without merit (see Garcetti v Ceballos, 547 US 410, 417 [2006]).

Petitioner's contention that the hearing officer's decision was based on mistakes of law and a disregard of the evidence is unavailing, since these are not grounds for vacating an arbitration award (Matter of Merrill Lynch, Pierce, Fenner & Smith Inc. v Graef, 34 AD3d 220 [2006]).

Petitioner's remaining contention, that the specifications against him were not brought in accordance with the Education Law, is unpreserved and, in any event, without merit.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 15, 2011

CLERK