Matter of Ferraro v Farina

Matter of Ferraro v Farina 2017 NY Slip Op 09233 Decided on December 28, 2017 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 December 28, 2017
Acosta, P.J., Richter, Mazzarelli, Andrias, Gesmer, JJ.
5273 652793/15

[*1]In re Paul John Ferraro, Petitioner-Appellant,

v

Carmen Farina, et al., Respondents-Respondents.

Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Eric Lee of counsel), for respondents.

Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered July 29, 2016, dismissing the proceeding, and bringing up for review a decision and order, same court and Justice, entered April 22, 2016, which, to the extent appealed from as limited by the briefs, denied the petition brought pursuant to CPLR article 75, seeking to vacate the opinion and award of respondents, dated August 3, 2015, terminating petitioner's employment, unanimously affirmed, without costs.

Education Law § 3020-a(5) provides that upon judicial review an arbitration award shall be vacated only upon a finding of one or more of the grounds cited at CPLR 7511(b)(1) (misconduct in procuring an award; arbitrator bias; arbitrator exceeding its power; procedural defects). Where, as here, the parties have submitted to compulsory arbitration "judicial scrutiny is stricter [than that for a determination made in a voluntary arbitration] and the 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 78. The party challenging [the] determination has the burden of showing its invalidity" (Matter of Asch v New York City Bd./Dept. of Educ., 104 AD3d 415, 418-419 [1st Dept 2013] [internal quotation marks and citations omitted]).

The court properly upheld the hearing officer's determination which was amply supported by the record. Petitioner admitted to specifications 5 through 8. With respect to other specifications upheld, the school administrators cited numerous examples of petitioner's pedagogical deficiencies which were noted in many formal and informal observations, and the extensive unsuccessful efforts to assist him to improve. Petitioner's assessment of the quality of his lessons was insufficient to overcome this testimony and the documentation of his deficiencies (see Matter of Benjamin v New York City Bd./Dept. of Educ., 105 AD3d 677, 678 [1st Dept 2013]).

The standard for reviewing a penalty imposed after a hearing pursuant to Education Law § 3020-a is whether the punishment of dismissal was so disproportionate to the offenses as to be shocking to the court's sense of fairness (see Matter of Asch at 421). Termination of petitioner's employment does not shock the conscience in that the attempts to improve his performance, which extended over a two to three year period, were largely unsuccessful. Moreover, his testimony demonstrated that he did not believe that his pedagogical technique was deficient (see Matter of Ajeleye v New York City Dept. of Educ., 112 AD3d 425, 425-426 [1st Dept 2013]).

The record does not include evidence that respondents discriminated against petitioner or retaliated against him when he complained, and he admitted that his requests for accommodations were largely granted.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 28, 2017

CLERK