Matter of Eilenberg v City of New York

Matter of Eilenberg v City of New York 2018 NY Slip Op 04101 Decided on June 7, 2018 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 June 7, 2018
Renwick, J.P., Richter, Webber, Kern, Moulton, JJ.
6818 654780/16

[*1]In re Marla Eilenberg, Petitioner-Appellant,

v

The City of New York, et al., Respondents-Respondents.

Glass Krakower LLP, New York (Bryan D. Glass of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered January 20, 2017, which granted respondents' cross motion to dismiss the petition challenging respondents' determination, which, after a hearing, sustained numerous specifications against petitioner and terminated her position as a guidance counselor, unanimously affirmed, without costs.

Petitioner abandons any challenge to the court's determination that the petition was not timely served, and that she had shown no cause to extend the time for service pursuant to CPLR 306-b (see Henneberry v Borstein, 91 AD3d 493 [1st Dept 2012]).

In any event, even assuming that the petition was timely served, the penalty of termination does not shock our sense of fairness. The record establishes petitioner's consecutive years of incompetent performance and resistance to remedial assistance (see e.g. Matter of March v New York City Bd./Dept. of Educ., 157 AD3d 555 [1st Dept 2018]). There exists no basis to disturb the Hearing Officer's credibility determinations (see Matter of Douglas v New York City Bd./Dept. of Educ., 87 AD3d 856, 857 [1st Dept 2011]).

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 7, 2018

CLERK