Matter of Storman v New York City Dept. of Educ.
Annotate this CaseDecided on November 19, 2010
Supreme Court, New York County
In the Matter of Glenn Storman, Petitioner,
against
New York City Department of Education, Respondent.
113652/2008
Counsel for Storman: John C. Klotz
Counsel for DOE: Daniel Chiu
Shirley Werner Kornreich, J.
Petitioner Glenn Storman moves to punish respondent Department of Education(DOE)for contempt for failure to comply with this court's judgment dated May 11, 2009 and entered May 13, 2009(Judgment). The motion is granted, unless the DOE purges its contempt in accordance with the order below.
The Judgment in this Article 78 proceeding annulled a determination of the DOE, dated June 10, 2008, which found that petitioner, a school guidance counselor, had committed a substantiated allegation of corporal punishment(Determination). The Determination was made after an investigation by the DOE's Office of Special Investigation. The Judgment held that the Determination was arbitrary and capricious and that the penalty, an unsatisfactory rating(U rating), was shocking to the conscience. In so doing, the court found as a fact that petitioner's accuser, Student A, made "false allegations of sexual conduct...." Decision, p. 7. The Judgment remitted the matter to the DOE for further proceedings not inconsistent with the decision. On May 29, 2010, petitioner served the Judgment on the DOE with notice of entry. The record reflects that since that time, the DOE annulled petitioner's U rating, but took no further proceedings.
The original petition sought expungement of the U rating in petitioner's 2005 annual review, substitution of a satisfactory or S rating (the only other rating available), lost income and lost benefits, including retirement benefits. Pursuant to Article 21H of the collective bargaining agreement(CBA)between petitioner's union, the United Federation of Teachers and the DOE, if an accusation of sexual misconduct or physical abuse is found by the Board or Special Commissioner of Investigation to have been knowingly false when made, then the Board [*2]must remove all references to the charges from the employee's personnel files, add evidence that the charge was unfounded to all department files, restore the employee's back pay with interest and, at the employees request, confirm to any regulatory agency the finding that the employees was falsely accused.
Petitioner now moves to hold the DOE in contempt because it has not fully restored petitioner's
position and attendant benefits, expunged his record and compensated him for lost pay and interest, as
required by the CBA. In response, the DOE raises the following defenses: 1)the contempt motion
should have been brought as a special proceeding rather than by notice of motion served by mail; 2)to
enforce the Judgment by contempt petitioner had to serve a certified copy of it on the DOE, pursuant to
CPLR 5104; 3)the DOE fully complied with the Judgment by annulling the U rating, which was the only
relief granted by the Judgment; 4)there was no clear and unequivocal mandate for the DOE to do
anything else; 5)petitioner must exhaust the CBA grievance and arbitration procedures to obtain relief
other than annulment of the U rating; and 6)the DOE has no control over petitioner's benefits, which are
under control of the Teacher's Retirement System (TRS) , a non-party.
Discussion
Petitioner properly moved by notice of motion served by mail. Judiciary Law 756. The case cited by the DOE requiring notice of a contempt application by personal service applies only to non-parties over whom the court does not have jurisdiction. John Sexton & Co., Div. of Beatrice Foods, Inc. v Law Foods, Inc., 108 AD2d 785, 787(2d Dept 1985)(service of motion by mail insufficient to obtain jurisdiction over non-party punished for contempt). Here, the court had jurisdiction over the DOE.
CPLR 5104 is not the exclusive manner of moving for contempt. It provides that a judgment "may be enforced by serving a certified copy of the judgment ... upon the party ... required thereby or by law to obey it and, if he refuses or wilfully neglects to obey it, by punishing him for a contempt of the court."(emphasis supplied)However, Judiciary Law 756 also authorizes a motion for civil contempt. It provides that "(a)n application to punish for a contempt punishable civilly may be commenced by notice of motion returnable before the court or judge authorized to punish for the offense."
The Judgment annulled the U rating and remitted the matter to the DOE "for further proceedings
not inconsistent with this court's decision."(emphasis supplied)The DOE has not taken the further
proceedings required by the CBA when it has been determined that a false accusation of physical abuse
or sexual misconduct has been made. Petitioner is not required to exhaust administrative remedies
because it has already been determined by the Judgment that the accusation of Student A was false.
The Judgment remitted the matter to the DOE for further
proceedings because it was best able to determine the procedures that flow from a judicial
determination of a false accusation and the parties, such as the TRS, that need to be notified and take
action to restore petitioner's rights. The Judgment did not, as the DOE contends, deny petitioner's rights
to further relief. It remitted the matter to DOE to determine what would flow from annulment of the U
rating due to a false accusation.
The Judgment clearly and unequivocally mandated further proceedings by DOE, which it admittedly has not taken. The court finds DOE's conduct in failing to take any steps in the matter remitted to be willful and contumacious. Accordingly, it is [*3]
ORDERED that the motion by petitioner Glenn Storman to hold the New York City Department of Education in contempt of this court's judgment dated May 11, 2009 and entered May 13, 2009 is granted; and it is further
ORDERED that the damages to which said petitioner is entitled as a result of the contempt, including reasonable attorneys fees and costs incurred in making this contempt application, is referred to a Special Referee to hear and determine, unless within thirty days of service upon the New York City Department of Education of a copy of this order with notice of entry, the New York City Department of Education purges its contempt by taking all steps that would flow from annulment of Glenn Storman's unsatisfactory rating due to a false accusation of sexual misconduct or physical abuse pursuant to the collective bargaining agreement between the Department of Education and the United Federation of Teachers; and it is further
ORDERED that if the New York City Department of Education does not purge its contempt, then
Glenn Storman shall serve a copy of this order with notice of entry on the Clerk of the Reference Part,
Room 119, to obtain a date for the reference and said Clerk shall notify the parties of the time and date
of the hearing.
Dated: November 19, 2010
ENTER:
__________________________J.S.C.
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