Matter of Rosario v Fine

[*1] Matter of Rosario v Fine 2010 NY Slip Op 52386(U) Decided on December 10, 2010 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2010
Supreme Court, Kings County

In the Matter of Application of Iris L. Rosario,, Petitioner,

against

Dr. Molly Fine, Chairperson, et. al., Respondents



9635/10

David Schmidt, J.

Upon the foregoing papers [FN1], petitioner, Iris L. Rosario (Rosario), moves for leave to reargue/renew the dismissal of her Article 78 petition which allegedly challenged her termination as a probationary school teacher with the New York City Department of Education (DOE) as well as the appeal and review process of her "unsatisfactory" ("U" [*2]rating) teaching rating.[FN2]

Background

Rosario commenced the underlying Article 78 petition seeking to challenge her July 1, 2009 termination as a probationary school teacher with the DOE as well as he appeal and review process of her allegedly undeserved "U" rating. In opposition to said petition, respondents moved to dismiss same, alleging that as Rosario was terminated July 1, 2009, the four month statute of limitations in CPLR 217 required her to commence her action on or before November 1, 2009. By not filing her petition until April 19, 2010, more than nine months after her termination, the statute of limitations had expired and Rosario's challenge was now time-barred. Respondents further alleged that, in contravention of New York Education Law (NYEL) § 3813, Rosario failed to file the statutorily required Notice of Claim, thus, she was also procedurally barred from maintaining her claim against the DOE.By order dated June 29, 2010, this court dismissed Rosario's petition for failing to file her action timely and for failing to file a notice of claim. By correspondence dated August 2, 2010, addressed to "Sylvia Hinds - Radix, Administrative Justice - Supreme Court," "David L. Schmidt - Supreme Court," and "Chancellors Committee - NYC D.O.E.," petitioner recounts the circumstances of her employment, termination, appeal from same and experience within the court, seeking reconsideration of the court's decision and demanding that her "U" rating be removed from her record as unfounded. Nowhere in petitioner's correspondence does she ask to be reinstated to her prior position. Rosario's primary argument involves allegations that some party's unknown forged her name on a request for appeal wherein her request was changed from an appeal of the " U' rating" to an appeal of the "Denial of Completion of Probation and "U" Rating." Petitioner includes the documents in question as exhibits to her correspondence.

By order dated August 1, 2010, the court notified the parties that it was considering petitioner's correspondence as a "motion" to reargue/renew the June 29, 2010 order of dismissal and granted respondents 30 days to serve and file opposition papers.

On September 17, 2010, respondents served opposition papers, alleging that Rosario's motion should similarly be dismissed because she fails to meet her prima facie burden on a motion to reargue or a motion to renew. In a second letter, dated November 3, 2010 and treated as a "reply" to respondents' affirmation in opposition, Rosario again states that she "knew that I have to file for a U rating, not for Denial of Completion of Probation and U rating" as well as that "someone counterfeit (a crime) my signature to change the appeal case to denial of completion of probation and U rating 2009." As with her first correspondence, petitioner does not seek to be reinstated to her former position, [*3]she seeks to have the "untrue U rating" removed from her file as it is allegedly preventing her from gaining new employment.

Discussion

Recognizing that Rosario is a pro se litigant, the court frames its decision by recognizing that a pro se litigant must be given some latitude due to her lack of formal legal training and unfamiliarity with court procedures and that her pleadings and papers should be given every favorable interpretation which can be drawn (see Mosso v Mosso, 6 AD3d 827, 828 [2004]; Sabatino v Albany Med. Center Hosp., 187 AD2d 777 [1992]; Moore v County of Rensselaer, 156 AD2d 784 [1989]). However, a pro se litigant who represents herself proceeds at her own risk, is not entitled to any greater rights than any other party, and cannot get concessions at the expense of another party's rights (see Roundtree v Singh, 143 AD2d 995 [1988]; Johnson v Title North, Inc,. 31 AD3d 1071 [2006]; Duffen v State, 245 AD2d 653 [1997]; Sloninski v Weston, 232 AD2d 923 [1996]; lv denied 89 NY2d 809; Brooks v Inn at Saratoga Assn., 188 AD2d 921 [1992]; Davis v Mutual of Omaha Ins. Co., 167 AD2d 714, 716 [1990]).

Petitioner's Motion to Reargue/Renew the Dismissal of her Article 78 Petition

It is well settled that:

"A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (Fosdick v Town of Hempstead, 126 NY 651; American Trading Co. v Fish, 87 Misc 2d 193)" (Foley v Roche, 68 AD2d 558, 567 [1979]).

" A motion for reargument is not designed to provide an unsuccessful party with successive opportunities to present arguments different from those already presented'" (Woody's Lbr. Co. v Jayram Realty, 30 AD3d 590, 593 [2006], quoting Gellert & Rodner v Gem Community Mgt., 20 AD3d 388 [2005]).

Dismissal Based on Failing to Timely File the Article 78 Petition

According to the June 26, 2009 notice of appeal signed by "Iris Rosario," petitioner sought an appeal based upon "Denial of Completion of Probation and "U" Rating," in effect, appealing both her termination as well as the administrative appeal and review process. The Second Department has stated that when a probationary teacher is challenging, among other things, termination of her employment,

"[a] CPLR article 78 proceeding must be commenced within four months after the determination to be reviewed becomes final and binding (see, CPLR 217; New York State Assn. of Counties v Axelrod, 78 NY2d 158). In the case of a determination to terminate probationary employment, the determination becomes final and binding on the date termination becomes effective (see, Matter of DeMilo v Borghard, 55 NY2d 216; Matter of Schulman v Board of Educ., 184 AD2d 643)" [*4](Persico v Board of Educ., 220 AD2d 512, 513 [1995]).

Rosario was formally terminated on July 1, 2009. The statute of limitations under CPLR 217 requires her to file her Article 78 petition within four months of the effective date of her termination to be timely. Rosario filed her Article 78 petition on April 19, 2010, nine months and nineteen days after the effective date of her termination or five months and nineteen days after the statute of limitations would have expired, had she in fact sought to appeal her termination. This court no longer believes this to be the case.

As previously mentioned, Rosario has adamantly argued that some unknown party changed the reason for her appeal and forged her signature on a new notice. When the court compares the June 17, 2009 notice of appeal (the document the petitioner alleges is the one she submitted) against the June 26, 2009 notice of appeal (the document the petitioner alleges to be the forgery) distinct differences in the signatures beg one to question if the same individual, purportedly the petitioner, signed both documents. When the signature on the June 17th notice of appeal is compared to the remaining exhibits on the instant motion, including those exhibits submitted by the petitioner and respondents in the underlying Article 78 proceeding, two conclusions are brought into clear focus. The first is that the signature on the June 17th notice of appeal is in fact that of petitioner. The second and certainly more troubling revelation is that the signature on the June 26th notice is indeed a forgery.

Having made this unsettling determination, a new question presents itself that seeks explanation from the record: "Why would some party unknown forge the petitioner's signature on a document that includes both possible avenues of appeal, a point that appears to benefit Rosario, rather than merely acting on the June 17th notice which only requested appeal of her "U" rating, thus leaving the issue of her termination settled and unopposed?" Neither respondents' affirmation in opposition to the petition, nor respondents' affirmation in opposition to petitioner's motion to reargue/ renew address the merits of Rosario's allegations of forgery. Absent any further evidence or explanation on this issue, the court is left in the precarious predicament of having based a prior decision regarding the petitioner's timeliness on a document that has recently been determined not to have been signed by the petitioner.

Precedential case law affords curious insight on this issue and in fact, offers the court a resolution. A continued reading of Persico, cited above, will prove quite interesting. For clarity, Persico stated, "A CPLR article 78 proceeding must be commenced within four months after the determination to be reviewed becomes final and binding (internal citations omitted). In the case of a determination to terminate probationary employment, the determination becomes final and binding on the date termination becomes effective (internal citations omitted). In the very next paragraph, the court continues:

"However, where, as here, a probationary teacher is not challenging his or her termination [*5]but, rather, is challenging the proceedings of a Chancellor's Committee set up to review a prior determination to discontinue probationary employment, the CPLR article 78 proceeding must be commenced within four months after the probationary teacher is notified that the Chancellor is reaffirming the discontinuance in accordance with the recommendation of the Committee (internal citations omitted). Since the petitioner claims that she was denied substantial procedural rights in the proceedings before the Committee and the CPLR article 78 proceeding was commenced within four months after the petitioner was informed that the Chancellor had reaffirmed his initial determination to discontinue the petitioner's probationary employment, the instant proceeding was timely commenced" (Persico, 220 AD2d at 513).

As the June 26th document, purporting to challenge the termination and "U" rating, has been determined to be a forgery, the court is left only with the June 16th document solely challenging the "U" rating. Rosario's petition argues that the Chancellor's appeal and review process of the "U" rating is not based on credible evidence. By the rationale of Persico, as Rosario only challenges the process involving the rating, her four-month statute of limitations did not begin on the date her termination became effective, to wit July 1, 2009, rather it began on the date she received the Chancellor's decision sustaining the rating. In the instant matter, the Chancellor's letter, drafted by his designee Santiago Taveras, Deputy Chancellor, was dated February 22, 2010. The date she received the letter is immaterial because Rosario would have had until on or about June 21, 2010 to file her Article 78 petition. By filing her petition on April 9, 2010, she was well within the applicable statute of limitations thus, her petition was filed timely. While such an inquiry does not shed light on the details of the forged July 26th notice, the fact that such an act can accelerate the commencement of the 4 month statute of limitations for filing an Article 78 petition proves to be a most compelling reason for its occurrence. Having reevaluated the relevant facts on this issue and how the controlling principles of law apply thereto, the decision to dismiss Rosario's petition based, in part, on this issue was in error (Foley, 68 AD2d at 567).

Dismissal Based on Failing to File a Notice of Claim

Having determined that Rosario's petition was timely filed, the focus now turns to whether the court misapprehended the relevant law such that contrary to the respondents' position, and this court's prior order, the petitioner was not required to file a notice of claim with the DOE prior to commencing her Article 78 action. NYEL § 3813 (1) states in relevant part:

"No action or special proceeding, for any cause whatever, except as hereinafter provided, relating to district property or property of schools . . . or claim against the district or any such school, or involving the rights or interests of any district or any such school shall be prosecuted or maintained . . . unless it shall appear by and as an allegation [*6]in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment" (emphasis added).

Interpreting this notice requirement in an appeal dismissing defendant school board's motion to dismiss plaintiff's complaint for a declaration of tenure rights, the Second Department determined:

"[T]he school board contends that the plaintiff's prayer for a declaration of his tenure rights is "an obvious request for damages in addition to the equitable relief sought." It argues that section 3813 [1] of the Education Law is all-encompassing. In doing so it stresses the opening phrase of the section that no action involving the "rights or interests" of the school district may be maintained unless a verified notice of claim is served and pleaded, but it ignores the last lines of the section, which deal with the "accrual of such claim" and with the neglect or refusal of the officer or body "having the power to adjust or pay said claim" to make such payment or adjustment within 30 days after presentment of the notice of claim. It is the latter language that is the foundation stone for the decisions which have held that the requirements of section 3813 [1] are applicable only to claims against a district's property or to demands for payment of money by a district and are not otherwise applicable (Levert v. Central School Dist. No. 6, Town of Huntington, 24 Misc 2d 832; Matter of Randall v. Hoff, 4 Misc 2d 376). We agree with the rationale of those decisions" (Ruocco v Doyle, 38 AD2d 132, 133 -134 [1972]) (emphasis added).

Rosario's petition does not make a claim against the DOE's property, nor does it make a claim for money damages, rather, she is challenging the appeal and review process by which the Chancellor sustained her "U" rating. Respondents' case law in support of its position is unavailing as all of the cases are distinguishable on the facts.[FN3] Accordingly, the court [*7]determines that under the facts of the instant matter, Rosario is not bound by the notice requirements of NYEL § 3813 and the decision to dismiss her petition based, in part, on this issue was in error (Foley, 68 AD2d at 567).

Based upon the foregoing, the court finds that Rosario timely commenced her Article 78 action and was not required to file a notice of claim pursuant to NYEL § 3813. Accordingly, this court's June 29, 2010 order of dismissal is vacated and the petition is reinstated. Having prevailed on her motion for reargument, the court will address petitioner's Article 78 request on the merits.

Petitioner's Article 78 Challenge to the Appeal and Review Process

As previously stated, Rosario's petition challenges the Chancellor's appeal and review process alleging that the "U" rating she received was not based on credible evidence. In opposition to the petition, respondents provide the following exhibits, utilized by the Committee, in arriving at its determination. Based upon the objections made at the review, certain documents were ordered to be removed from petitioner's file, therefore, these documents do not appear herein: (1) Chancellor's Committee Report of the Review of Petitioner's Appeal of her rating of "Unsatisfactory" for the period ending June 2009, (2) Procedural Objections made during the Review of Petitioner's Appeal and resolution of same, (3) Petitioner's Annual Professional Performance Review for the period 8/2008 through 6/2009, (4) Observation Report for an observation dated November 19, 2008 prepared by Catherina Garzon, Assistant Principal, containing a hand-written note indicating petitioner refused to sign same, (5) Response to the preceding Observation Report, from petitioner, dated April 29, 2009, disagreeing with substance of the preceding report, (6) Observation Report for an observation dated December 3, 2008, prepared by Marilyn Torres, Principal, containing a hand-written note indicating petitioner refused to sign same, (7) Response to the preceding Observation Report, from petitioner, also dated April 29, 2009, disagreeing with substance of the preceding report, (8) Observation Report for an observation dated February 13, 2009, prepared by Marilyn Torres, Principal, containing a hand-written note indicating petitioner refused to sign same (9) Observation Report for an observation dated May 15, 2009, prepared by Marilyn Torres, Principal, and signed by petitioner on May 29, 2009, (10) Professional Development Log for petitioner for School Year 08-09, (11) Denial of Certification of completion of Probation letter to petitioner.

To the extent that petitioner alleges that the Committee's determination sustaining her "U" rating was not based upon credible evidence and, by extension, was arbitrary and capricious, the court rejects this contention. While the court certainly sympathizes with the petitioner's situation, it is none the less constrained to decide controversies within the [*8]confines of established law. Great deference is afforded to administrative decisions. Such determinations will not be disturbed unless affected by an error of law, are arbitrary and capricious or constitute an abuse of discretion (see CPLR 7803[3]; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398, 404 [1979]). Here, the Committee's determination followed a full and fair hearing where ample evidence supported its determination that petitioner was instructed as to her duties and goals, was counseled throughout the school year about her deficiencies and that she continued to perform in an unsatisfactory manner. This evidence supported the Committee's decision and the Chancellor's concurrence of same.

Accordingly, petitioner's application for judgment pursuant to CPLR Article 78 annulling the decision of the respondents is denied and the petition is hereby dismissed.

The court, having considered the parties remaining contentions, finds them to be without merit. All relief not expressly granted herein is denied.

This foregoing constitutes the decision, order and judgment of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:Rosario's papers consist of two letters, addressed to the court, that attempt to clarify her position regarding the issues herein. In deference to her status as a pro-se litigant, the court elects to treat her papers as a "motion" to reargue/ renew the dismissal of her Article 78 petition.

Footnote 2:The subject of petitioner's Article 78 challenge is drawn from a cursory review of the documents and prior orders in this matter. A closer review, as is warranted on a motion to reargue/ renew, yields a contrary result that will be borne out in the body of this decision.

Footnote 3:(Varsity Tr., Inc. v Board of Educ. of City of New York, 5 NY3d 532 [2005] [Plaintiff alleges defendant misapplied contract formulas and underpaid plaintiffs]; Parochial Bus Sys. v Board of Educ. of City of New York, 60 NY2d 539, 547 [1983] [Plaintiff commenced action to recover amounts allegedly owed to it under a contract with defendant]; Republic of Argentina v City of New York, 25 NY2d 252 [1969] [Propriety of collecting taxes from sovereign nation]; Clune v Garden City Union Free School Dist., 34 AD3d 618, 619-620 [2006] [Plaintiff sued for breach of collective bargaining agreement because defendant failed to pay her a retirement incentive in the sum of $15,000]; C.S.A. Contr. Corp. v New York City School Constr. Auth., 5 NY3d 189 [2005] [Breach of contract action seeking payment for asbestos abatement removal performed by plaintiff contractor at a New York City school]; Pinder v City of New York, 49 AD3d 280 [2008] [First Department case under Executive Law §296 based upon alleged employment discrimination]; Flacks v New York City Bd. of Elections, 16 Misc 3d 1110(A) [2007] [New York County Civil Court case where plaintiff seeks money damages for alleged defamation]).