Cruz v New York City Dept. of Educ.

[*1] Cruz v New York City Dept. of Educ. 2010 NY Slip Op 50016(U) [26 Misc 3d 1208(A)] Decided on January 5, 2010 Supreme Court, New York County Scarpulla, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 5, 2010
Supreme Court, New York County

Josefina Cruz, Plaintiff,

against

New York City Department of Education, Defendant.



117004/08



For Plaintiff:

Joy Hochstadt, P.C.

300 Central Park West, Suite 2E

New York, New York 10024

For Defendant:

Michael A. Cardozo, Corporation Counsel

100 Church Street, 4th Floor

New York, NY 10007

Saliann Scarpulla, J.

In this action seeking to vacate a December 1, 2008 arbitration award entered against plaintiff Josefina Cruz ("Cruz"), defendant New York City Department of Education ("DOE") moves to dismiss the complaint pursuant to CPLR §3012(b).

Cruz began her employment with the DOE as a Spanish teacher in September 1994. She achieved tenure in 1999 and in July 2003, was assigned to teach at Graphic Communications Arts High School in Manhattan.

On June 26, 2006, pursuant to Education Law ("Educ. Law") §3020-a, DOE asserted fourteen specifications against Cruz in categories of incompetent service, insubordination/neglect of duty, and abusive conduct during the 2004-2005, and 2005-2006 school years. Cruz elected to have a hearing under Educ. Law §3020-a. In July 2006, Mitchell Rubinstein ("Rubinstein"), counsel for New York State United Teachers ("NYSUT"), a union to which Cruz belonged, was assigned to represent Cruz in the disciplinary proceeding. Arthur A. Riegel ("Riegel") was appointed as hearing officer.

At a preliminary conference on March 20, 2008, Rubinstein made an oral application to withdraw as counsel for Cruz on the ground of conflict of interest because the United Federation of Teachers ("UFT"), which was represented by NYSUT in other matters, was named in a lawsuit in which Cruz was a co-plaintiff ("Teachers4Action case").[FN1] Riegel granted Rubinstein's [*2]application and Cruz was strongly encouraged by Riegel and Rubinstein to obtain other counsel for the proceeding. Riegel informed Cruz of the next few hearing dates and he exchanged email addresses with the parties to facilitate communications.

On May 5, 2008, Cruz appeared at a pre-hearing conference pro se, accompanied by Edward Fagan ("Fagan"), her attorney in the Teachers4Action case.[FN2] Fagan accused Riegel of possessing three ex parte communications in the form of e-mails in his file. Cruz objected to conducting the hearing without counsel and objected to Riegel presiding over the hearing due to bias. Riegel reminded her that he had repeatedly advised her to obtain counsel and that she had sufficient time to do so. Riegel overruled her objection, notified her of the next few hearing dates, and again, strongly recommended that she obtain counsel. Riegel informed Cruz that the hearings would proceed whether or not she chose to attend and whether or not she was represented by counsel.

Cruz did not appear for any of the scheduled hearings, which were conducted on June 2, June 4, June 6, and June 10, 2008.

On December 1, 2008, Riegel issued a decision finding Cruz guilty of ten of the fourteen charged specifications. Based on the totality of the charges, Riegel determined that there was just cause to terminate Cruz and that DOE should not be required to continue to employ her. Cruz received the arbitrator's decision on December 10, 2008. She was notified that she was terminated on December 12, 2008.

Cruz commenced this action, pro se, by filing a summons with notice on or about December 19, 2008 alleging "breach of arbitration contract, to set aside arbitration or to modify or to remand in accordance with Articles 75 or 78." DOE was served with the summons and notice on or about April 17, 2009. On May 6, 2009, DOE served Cruz with a notice of demand [*3]for complaint.

On June 23, 2009, DOE moved to dismiss this complaint pursuant to CPLR §3012(b) on the ground that Cruz failed to serve her complaint within twenty days after service of the notice of demand for complaint. Cruz, appearing pro se, ultimately served and filed a "complaint/petition" on July 6, 2009. She then retained counsel. On August 17, 2009, Cruz served DOE with an amended verified complaint/petition.

In opposition to DOE's motion to dismiss, Cruz argues that she had a reasonable excuse for the delay in that (1) she was pro se and did not understand the procedural tasks necessary to commence an Article 75 proceeding; and (2) she suffered a nervous breakdown from January 2009 through July 2009, as diagnosed and attested to by Stanley Meyers ("Meyers"), a psychologist who examined Cruz and reviewed her medical records, letters and sworn statements of certain individuals who regularly interacted with Cruz during the first six months of 2009.

She further argues that DOE suffered no prejudice by the short delay and she has a meritorious claim. In seeking to vacate the arbitrator's award, Cruz argues that the proceeding was corrupt as she was forced to proceed without the assistance of counsel and with an arbitrator who was provoked by the possibility that disciplinary charges were going to be brought against him. Cruz also claims that the arbitrator was privy to ex parte communications, and that there were procedural defects in the administration of the §3020-a proceeding.

In reply, DOE argues that (1) pro se status is not an excuse for non-compliance with CPLR requirements; (2) an Article 75 proceeding can not be commenced by summons with notice; (3) even if the summons and notice was to be construed as a notice of petition, her Article 75 claim is time barred because it is the filing of the petition that commences a special proceeding, not the notice of petition, and here, the "petition" (aka complaint/petition) was filed nearly seven months after the arbitrator's decision and not within the required time period; (4) even if Cruz's filing of the summons and notice was to be construed as a timely commencement of the proceeding, she still failed to timely serve DOE with the summons and notice; (5) petition fails to state a claim because there is no evidence that Cruz's rights were prejudiced by corruption, fraud or misconduct or that Riegel was biased; and (6) any procedural defects in the administration of the §3020-a proceeding were waived because Cruz did not make timely objections.

Cruz, in a separate motion sequence, also moves to file an amended petition. DOE cross moves to dismiss the amended petition on the grounds that (1) Cruz never obtained permission from the court to serve a second amended pleading or to convert the instant action into a special proceeding, (2) this attempt to commence a special proceeding is time barred; and (3) in any event, the amended petition fails to state a claim.

Discussion

Cruz's arbitration arose through the statutory mandate of Educ. Law §3020-a(5). Therefore, the proper vehicle for judicial review of the arbitrator's determination is an Article 75 special proceeding. See Educ. Law §3020-a(5); Lackow v. Dept. of Educ. of the City of New York, 51 AD3d 563, 567 (1st Dep't 2008) ("Education Law §3020-a(5) provides that judicial review of a hearing officer's finding must be conducted pursuant to CPLR 7511").

The CPLR makes clear that a special proceeding, such as one pursuant to Article 75, must be initiated with the filing of a petition. In particular, CPLR 304 provides that an "action is [*4]commenced by filing a summons and complaint or summons with notice," whereas a "special proceeding is commenced by filing a petition" (emphasis added). Cruz's filing and service of the summons with notice is not the proper way to initiate an Article 75 proceeding. See Matter of Citizens Against Sprawl-Mart v. City of Niagara Falls, 35 AD3d 1190, 1191 (4th Dep't 2006) ("petitioners filed a summons with notice and thus did not properly commence a special proceeding").[FN3] Even were the Court to construe her summons with notice as a notice of petition, "in the absence of an accompanying petition, petitioners' papers are jurisdictionally deficient." Matter of Lebow v. Village of Lansing Planning Board, 151 AD2d 865, 866 (3d Dep't 1989). See also Matter of 680 Realty Partners v. Commissioner of the Dep't of Finance of the City of New York, 244 AD2d 288, 289 (1st Dep't 1997) ("Filing of the bare notice of petition in this case was insufficient to commence the special proceeding within the meaning of CPLR 304"). Cruz served and filed a complaint/petition on July 6, 2009, which was nearly seven months after the arbitrator's decision and well beyond the ten-day time period set forth in Educ. Law §3020-a(5).[FN4] Cruz was also notified of the ten-day limitations period in the cover letter accompanying the hearing officer's decision. As such, a special proceeding is now time-barred.[FN5]

Cruz argues that her failure to properly and timely commence an Article 75 proceeding should be excused because she was proceeding pro se. However, it is well settled that a litigant's pro se status is no excuse for failure to comply with procedural requirements. See Matter of Ruine v. Hines, 57 AD3d 369, 370 (1st Dep't 2008) ("Petitioner's pro se status is not an excuse for [*5]noncompliance" with requirement of service for order to show cause and article 78 petition); Goldmark v. Keystone & Grading Corp.,226 AD2d 143, 144 (1st Dep't 1996) ("pro se litigant acquires no greater rights than those of any other litigant and cannot use such status to deprive defendant of the same rights as other defendants ") (citation omitted).

In addition, Cruz argues that she was not able to comply with the procedural requirements for commencing an Article 75 proceeding because "she was under tremendous stress having lost her life-tenure career and ample income," and that "[s]he was not receiving either medical care nor her prescribed medications for life threatening maladies including Diabetes and Hypertension having lost the health benefits with the job."

In support of her claimed disability Cruz submits Meyers' affidavit. Myers, a psychologist, was not treating Cruz in December, 2008, nor was he treating her during the first six months of 2009. Nevertheless, Myers concludes that Cruz was suffering a nervous breakdown from January through July 2009. Myers conclusion is based upon a single examination of Cruz in October, 2009, discussions with her friends and her attorney (a former colleague of his), and review of her medical records.

While Meyers states that Cruz was "seriously and medically compromised . . . beginning in January 2009," the critical time period is December 2008, when Cruz received the arbitrator's decision and order and when she was required to commence an Article 75 proceeding. While Meyers concludes that Cruz was suffering from medical and psychological conditions beginning in January 2009, subsequent to her filing the notice with summons on December 19, 2008, he does not opine that Cruz was unable to prosecute her legal affairs in December, 2008.

Cruz fails to submit any competent evidence to show that she was incapacitated prior to losing her job, and does not submit any proof of medical or mental problems prior to her nervous breakdown which, according to the proof submitted, began in January 2009. See, e.g., Ferran v. Dwyer, 252 AD2d 758, 759 (3d Dep't 1998) ("While we may take judicial notice of a particular illness or condition as a phenomenon, we are without power to do so with respect to its occurrence and/or its effects upon a party, particularly in the absence of supporting medical evidence of which the record is devoid"). In fact, Cruz herself suggests that she failed to properly commence an article 75 proceeding in December, 2008 because she was relying on the advice of Fagan, her attorney in the Teachers4Action matters.

Moreover, regardless of the reasonableness of Cruz's excuse for failing properly and timely to commence a special proceeding, Cruz has failed to show that she has a meritorious claim.

Under CPLR 7511, an arbitration award "may only be vacated on a showing of misconduct, bias, excess of power or procedural defects.'" Lackow, 51 AD3d at 567 (quoting Austin v. Board of Educ. of City of New York, 280 A.D.365 (1st Dep't 2001)). "Petitioner has the burden of establishing that the hearing officer's determination was based on misconduct or bias, and, to succeed, allegations of misconduct, including bias, must be supported by clear and convincing evidence." Matter of Hayes v. New York City Dept. of Educ., 2009 NY Slip Op 52487U (Sup. Ct. NY Co. Nov. 11, 2009) (citations omitted).

Additionally, "[w]here, as here, the requirement to arbitrate arises through a statutory mandate (see Education Law § 3020-a(5)), the arbitrators' determination is subject to closer judicial scrutiny under CPLR 7511(b) than it would receive had the arbitration been conducted [*6]voluntarily," Matter of Saunders v. Rockland Board of Cooperative Educ. Services, 62 AD3d 1012, 1013 (2d Dep't 2009) (citations omitted), and "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." Lackow, 51 AD3d at 567. "When reviewing compulsory arbitrations in education proceedings such as this, the court should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice." Saunders, 62 AD3d at 1013.

Cruz makes numerous arguments to vacate or modify the arbitrator's award. First, Cruz argues that the proceedings were corrupt as she was forced to proceed without the assistance of counsel. As stated above, proceeding pro se is not a valid basis for relief from an arbitrator's award. Also, Cruz was given ample time and opportunity to find replacement counsel once Rubinstein was allowed to withdraw as counsel. Cruz chose not to retain replacement counsel, and not to participate or provide a defense in the proceedings against her.[FN6]

Cruz also argues that it was error for the hearing officer to refuse her request for an additional indefinite adjournment after Rubinstein withdrew as counsel, and "until the representation issue was resolved." Refusal to grant an adjournment generally rests within an arbitrator's sound discretion. See Harwyn Luggage, Inc. v. Henry Rosenfeld Inc. 90 AD2d 747, 747-748 (1st Dep't 1982), aff'd 58 NY2d 1063 (1983); Hayes, 2009 NY Slip Op 52487U at *7; Matter of Chawki v. New York City Dept. of Educ., 39 AD3d 321, 323-324 (1st Dep't 2007) ("denial of an adjournment [is] a matter that lies in the sound exercise of the arbitrator's discretion which will only be disturbed if abused") (citations omitted). The refusal to grant Cruz an open-ended adjournment to resolve her so-called, representation issues, when she had already been given ample time to hire new counsel, was soundly within the hearing officer's discretion, and Cruz has offered no evidence of abuse.[FN7] [*7]

In addition, Cruz argues that the hearing was tainted by an arbitrator who was provoked by the possibility that disciplinary charges were going to be brought against him. Cruz offers nothing to support this claim, other than the fact that the Teachers4Action brought an Article 78 proceeding against Riegel and all other arbitrators on the panel. However, the Teachers4Action Article 78 proceeding was commenced after the conclusion of Cruz's hearing, and Justice Payne dismissed it almost four months before Riegel issued his decision in Cruz's hearing.

Cruz, as one of the plaintiffs in the Article 78 proceeding before Justice Payne, chose to initiate it while her arbitration was pending. Cruz fails to support a claim that Riegel lacked neutrality, but if there were " any resultant cloud on [the hearing officer's] neutrality [it] would thus be a self-inflicted injury on petitioner's part.'" Matter of Hayes, 2009 NY Slip Op 52487U at *7 (quoting Matter of Hollander v. New York City Dept. of Educ., 2009 NY Slip Op 31399U (Sup. Ct. NY Co. June 15, 2009). As the Court explained in Matter of Hayes, "[Teachers4Action] made claims against many hearing officers, and petitioner points to nothing specific to the [hearing officer] that would have required [his] disqualification, but merely makes generic, unsupported claims of bias. Were the Court to accept petitioner's view, essentially that disqualification is necessary when a hearing officer is sued or threatened with suit, without more, would merely serve to encourage an easy method of disqualification."

Cruz further argues that Riegel committed error when he participated in ex parte communications. In support of this argument, Cruz asserts that DOE Legal Services Deputy Director Theresa Europe ("Europe") held ex parte meetings with arbitrators regarding the hearings, and that Europe distributed ex parte emails that she had received from a Teachers4Action plaintiff suggesting that hearing officers should recuse themselves from the proceedings while Teachers4Action teachers were unrepresented. Cruz offers no competent evidence for her assertion that ex parte communications took place specifically between Europe and Riegel, or that Riegel was in possession of any ex parte email communications.

Instead, Cruz merely claims that Fagan, Cruz's (now disbarred) attorney in the Teachers4Action cases, observed copies of the email in Riegel's case folder. Cruz has no first hand knowledge of this, nor does Cruz's current counsel. Cruz does not offer an affidavit by Fagan or anyone else with firsthand knowledge. Cruz points to Fagan's accusations that Riegel was in possession of these email communications made on the record on May 5, 2008, but these fail to support Cruz's baseless contention. The claims that Riegle participated in ex parte communications with the DOE is unsupported by any competent evidence and therefore is unavailing.

Lastly, Cruz argues that her Educ. Law §3020-a hearing was plagued with procedural defects. In particular, Cruz argues that Riegel failed timely to hold a pre-hearing conference, did not complete the hearing within 60-days of the pre-hearing conference, and failed to issue a decision within 30 days of the final hearing date.Without addressing the merit of these complaints, the Court notes that Cruz raised these objections for the first time in this motion. As Cruz's did not timely make and preserve these objections, they are now waived. See CPLR 7505 ("party waives the objection that an award was not made within the time required unless he notifies the arbitrator in writing of his objection prior to the delivery of the award to him"); [*8]Matter of Hayes v. New York City Dept. of Educ., 2009 NY Slip Op 52487U, at *9 (Sup. Ct. NY Co. Nov. 11, 2009) ("petitioner did not object to these technical flaws, and such failure to do so must be deemed a waiver of such constraints").

In sum, Cruz's action/purported Article 75 proceeding is both procedurally infirm and lacks substance on the merits. Accordingly, the Court grants the motion of the defendant/respondent New York City Department of Education to dismiss the proceeding.

In accordance with the foregoing, it is

ORDERED that defendant New York City Department of Education's motion to dismiss the complaint pursuant to CPLR §3012(b) is granted; and it is

ORDERED that plaintiff Josefina Cruz's motion to amend the complaint/petition is denied; and it is further

ORDERED that defendant New York City Department of Education's cross motion to dismiss the petition is denied as moot.

This constitutes the Decision and Order of the Court.

Dated:New York, New York

January 5, 2010

E N T E R:

_____________________________

Hon. Saliann Scarpulla, J.S.C. Footnotes

Footnote 1: In the Teachers4Action case, a group of teachers, who were accused of various alleged offenses, filed suit against UFT, DOE and certain other defendants demanding that the City shut down "rubber rooms," temporary reassignment centers to which they were confined for three years or longer while awaiting their §3020-a hearings. They alleged, inter alia, that the "rubber rooms" were part of a scheme to discriminate against older tenured teachers and reduce salaries by forcing teachers to quit or be fired.

On April 24, 2008, the plaintiffs in the Teachers4Action case filed an Article 78 proceeding seeking to enjoin certain arbitrators, including Riegel, from continuing to preside over §3020-a hearings due to bias, prejudice, conflicts of interest and concealment of evidence. On August 6, 2008, Judge Kibbie Payne dismissed the proceeding on the ground that petitioners improperly filed an Article 78 proceeding instead of an Article 75 proceeding. In the decision, Judge Payne further noted that Teachers4Action nevertheless failed to demonstrate a real possibility that any injustice would result if the arbitrators were not disqualified and failed to establish a clearly apparent bias on the part of the arbitrators.

Footnote 2: Shortly thereafter, on December 11, 2008, Fagan was disbarred. See Matter of Fagan, 58 AD3d 260 (1st Dep't 2008).

Footnote 3: While an action may be commenced by a summons with notice, there is no equivalent procedure available for commencing a special proceeding. See Matter of Long Island Citizens Campaign, Inc. v. County of Nassau, 165 AD2d 52, 55 (2d Dep't 1991) ("notice of petition [alone] cannot be deemed the equivalent of a summons with notice . . . [and] cannot be deemed the functional equivalent of a petition"); Matter of Lebow v. Village of Lansing Planning Board, 151 AD2d 865, 866 (3d Dep't 1989) (service of notice of petition without accompanying petition is not analogous to notice with summons for commencing an action).

Footnote 4: Educ. Law §3020-a(5) provides that "[n]ot later than ten days after receipt of the hearing officer's decision, the employee . . . may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seven thousand five hundred eleven of the civil practice law and rules."

Footnote 5: Even assuming, arguendo, that Cruz could have initiated this proceeding by filing and service of a summons with notice, her service of the summons with notice on the DOE was not timely. CPLR 306-b provides, in pertinent part, that "where the applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires." Accepting that Cruz received the arbitrator's Decision and Award on December 10, 2009, pursuant to CLR 306-b Cruz had 15 days after the 10 day statute of limitations, or by December 26, 2008, to serve the DOE. However, Cruz served the summons with notice on the DOE on April 17, 2009. Cruz has not requested an extension of time to serve the DOE under CPLR 306-b.

Footnote 6: Cruz's argument that she was denied due process because Riegel conducted the hearing in her absence is without merit. "Unjustified refusal to participate in an arbitration hearing does not afford a basis for attack upon an award rendered on default and may not be utilized to frustrate this state's strong public policy of encouraging, by judicial noninterference, an unfettered, voluntary arbitration system, where equity should be done." Matter of Chawki v. New York City Dept. of Educ, 39 AD3d 321, 324 (1st Dep't 2007) (citations omitted); see also CPLR 7506(c) ("Notwithstanding the failure of a party duly notified to appear, the arbitrator may hear and determine the controversy upon the evidence produced.").

Footnote 7: Similarly unavailing is Cruz's suggestion that Riegel refused to grant her request for an adjournment because his compensation was calculated on a daily basis, and he stood to "lose" money for each day the hearing was not held. Cruz does not assert that Riegel was claiming payment for days on which headings were not held, or that he attempted to receive any remuneration improperly. Hearing officers' compensation is not decided on a case by case basis, but rather is part of the Collective Bargaining Agreement negotiated between the UFT and the DOE. Cruz offers nothing to support a claim that Riegel acted improperly.