Matter of Zarinfar v Board of Educ. of the City Sch. Dist. of the City of New York

[*1] Matter of Zarinfar v Board of Educ. of the City Sch. Dist. of the City of New York 2013 NY Slip Op 52326(U) Decided on September 16, 2013 Supreme Court, New York County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2013
Supreme Court, New York County

In the Matter of the Application of Majid Zarinfar, Petitioner,

against

Board of Education of the City School District of the City of New York, and JOEL I. KLEIN, in his official capacity as CHANCELLOR OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Respondents.



116457/2010



For Petitioner

Richard E. Casagrande Esq. and Lori M. Smith Esq.

52 Broadway, New York, NY 10004

For Respondents

Gail M. Mulligan, Assistant Corporation Counsel

of the City of New York

100 Church Street, New York, NY 10007
Lucy Billings, J.

In this proceeding pursuant to C.P.L.R. Article 78 challenging petitioner's termination from his probationary teaching position as arbitrary, petitioner seeks a declaratory judgment that he obtained tenure and that the termination violated New York Education Law §§ 2573, 3012, and 3020-a and therefore is void. He further seeks reinstatement to his teaching position with retroactive pay plus interest, employment benefits, and seniority to which he would have been entitled had he not been discharged.

I.BACKGROUND FACTS

Petitioner was appointed a probationary teacher under his Mathematics teaching license at Middle School (M.S.) 429 in Kings County on August 30, 2007, and taught there until the end of the 2009-2010 school year. For the 2009-2010 school year, he received an unsatisfactory (U-) rating on his Annual Professional Performance Review (APPR), after which his probationary employment as a teacher was discontinued. Before teaching Mathematics at M.S. 429, he taught under his Technology license at Science Skills High School in Kings County from 2005 to 2007. For the 2006-2007 school year, he filled a vacancy as a Mathematics teacher at Science Skills [*2]High School and received a U-rating due to substantiated allegations of professional misconduct. Based on the Science Skills High School principal's recommendation of discontinuance, petitioner was terminated from his probationary employment in July 2007.

During his employment at M.S. 429, petitioner underwent one formal observation with a satisfactory rating during the 2009-2010 school year, following satisfactory ratings for the two school years from 2007 to 2009. On June 28, 2010, he received and signed a satisfactory year end performance rating for the 2009-2010 school year. This rating subsequently was changed to a U-rating, which petitioner claims was never presented to him for review or signature. The school principal orally discontinued petitioner's probationary employment when petitioner appeared for the first day of the new school year on September 3, 2010.

II.THE PARTIES' CLAIMS

Petitioner claims he never received any written notice of his discontinuance as a probationary teacher or of the denial of tenure, in violation of Education Law §§ 2573(1)(a) and 3012(2), the New York City Department of Education Panel for Educational Policy's By-Laws, and the collective bargaining agreement between petitioner's union and respondents. He alleges that respondents then continued his employment after the expiration of his probationary period on August 30, 2010.

Petitioner further maintains that, since he taught Mathematics from the beginning of the 2006-2007 school year at Science Skills High School and never received notice that he was not recommended for tenure after three years of probationary service as a Mathematics teacher at the end of the 2008-2009 school year, he acquired tenure by estoppel. As a tenured teacher, he was entitled to a disciplinary hearing, which he was never provided, before being terminated from his teaching position. NY Educ. Law §§ 2573(5), 3012(2).

Respondents defend against petitioner's claim of tenure by maintaining that his probationary appointment under his Mathematics license began on August 30, 2007, an appointment that was discontinued before the expiration of his probationary period on August 30, 2010. His probationary employment from 2005-2007 under his Technology license was discontinued due to unsatisfactory performance and therefore does not apply toward the three years of satisfactory probationary service required for to obtain tenure. NY Educ. Law §§ 2573(1)(a) and (5), 3012(1)(a) and (2). See Kahn v. New York City Dept. of Educ., 18 NY3d 457, 472 (2012); Remus v. Board of Educ. for Tonawanda City School Dist., 96 NY2d 271, 278 (2001). Respondents claim that petitioner's original satisfactory rating for the 2009-2010 school year was generated in error and that they corrected the error and notified petitioner of his corrected U-rating the day after he received and signed the incorrect APPR report.

As long as petitioner was a probationary employee, respondents were entitled to discharge him for any reason and without a hearing, unless his discharge was in bad faith or for an unlawful reason, which petitioner bears the burden to establish. Goonewardena v. State of NY Workers' Compensation Bd., 95 AD3d 638, 638 (1st Dep't 2012); Che Lin Tsao v. Kelly, 28 AD3d 320, 321 (1st Dep't 2006). Respondents insist that the record of substantiated allegations of petitioner's verbal abuse toward a student leading to his 2009-2010 unsatisfactory rating supports a good faith basis for the discontinuance of his probationary employment under his Mathematics license.

III.TENURE BY ESTOPPEL

Upon the superintendent of schools' recommendation, respondent Board of Education must appoint an eligible teacher for a probationary period of three years, during which the teacher's service may be discontinued at any time. NY Educ. Law §§ 2573(1)(a), 3012(1)(a). A teacher who is not to be recommended for tenure must be so notified in writing no later than 60 days before the expiration of his probationary period. NY Educ. Law §§ 2573(1)(a), 3012(2). A teacher may acquire tenure by operation of law when respondent Board of Education fails either to grant or to deny him tenure upon the expiration of his probationary period and continues to employ him as a teacher. Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d 110, 114 (1997); Andrews v. Board of Educ. of the City School Dist. of the City of [*3]NY, 92 AD3d 465, 465 (1st Dep't 2012); Triana v. Board of Educ. of City School Dist. of City of NY, 47 AD3d 554, 556 (1st Dep't 2008).

A.Tenure from 2006 to 2009

Petitioner claims that, because he taught Mathematics at Science Skills High School during the 2006-2007 school year, his probationary service commenced at the beginning of that school year, and therefore he acquired tenure at the end of the 2008-2009 school year. Teaching the same subject for three or more years, under two separate appointments and teaching licenses, is not determinative of his tenure status. See Schensul v. Community School Bd. 32, 122 AD2d 56, 57 (2d Dep't 1986). A probationary period is designed to determine whether a probationary appointee is competent and satisfactory to be recommended for tenure. McManus v. Board of Educ. of Hempstead Union Free School Dist., 87 NY2d 183, 188 (1995). Attainment of tenure requires competent, satisfactory, and efficient service throughout the probationary period. NY Educ. Law §§ 2573(5), 3012(2).

During the 2005-2006 and 2006-2007 school years, petitioner served as a probationary teacher at Science Skills High School, where his probationary service was discontinued effective July 30, 2007. V. Answer Ex. J. That 2007 termination of petitioner's probationary appointment was based on a recommendation for discontinuance due to the overall U-rating petitioner received for the 2006-2007 school year. V. Answer Exs. I and J. His petition for judicial review of that termination was dismissed. Zarinfar v. Board of Educ. of the City School Dist. of the City of NY, 93 AD3d 466, 467 (1st Dep't 2012).

The July 2007 discontinuance constitutes respondents' affirmative denial of tenure before the expiration of petitioner's probationary appointment at Science Skills High School. Petitioner provides no factual or legal support for his claim that the July 2007 discontinuance pertains only to his service under his Technology license and that his probationary service continued under his Mathematics license notwithstanding the termination from his position at Science Skills High School. Even construing tenure standards liberally in the teacher's favor, Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d at 117, no authority supports his entitlement to any credit for that prior probationary service, for which he received a U-rating that led to his discontinuance from that service. Likewise, no authority supports tacking such credit on to a new probationary appointment, at a different school, on a track toward tenure under a separate Mathematics teaching license.

Nor does the factual record support the proposition that petitioner's appointment on August 30, 2007, as a Mathematics teacher at M.S. 429 was a continuation of his prior probationary appointment at Science Skills High School, from which petitioner was terminated. The probationary appointment at issue in this proceeding, made on August 30, 2007, at M.S. 429, under petitioner's Mathematics license, V. Answer Ex. B, constitutes a new appointment to probationary employment that commenced on the date of his appointment. See Triana v. Board of Educ. of City School Dist. of City of NY, 47 AD3d at 556; Haberski v. New York City Dept. Of Educ., 33 AD3d 549, 549 (1st Dep't 2006); Herbert-Glover v. Board of Educ. of Wantagh Union Free School Dist., 213 AD2d 404, 405 (2d Dep't 1995).

B.Tenure from 2007 to 2010

Petitioner insists that, even discounting his claimed probationary employment credit for the 2006-2007 school year, he acquired tenure under his Mathematics license at the end of the 2009-2010 school year. Petitioner's nonreceipt of notice from respondents denying him tenure as required by Education Law §§ 2573(1)(a) and 3012(2) does not automatically lead to tenure by estoppel. Andrews v. Board of Educ. of the City School Dist. of the City of NY, 92 AD3d at 465. The test is whether respondents knowingly permitted petitioner to continue to teach after his probationary period expired. Id.; Ronga v. Klein, 81 AD3d 567, 568 (1st Dep't 2011).

Although the record nowhere discloses any written notice of discontinuance provided to petitioner, neither does the record indicate that respondents allowed him to continue teaching after his probationary period expired on August 30, 2010. The introductory email to all M.S. 429 teaching staff sent on August 10, 2010, from the newly appointed principal of M.S. 429, and [*4]petitioner's voluntary attendance at a non-mandatory workshop on September 2, 2010, do not demonstrate respondents' affirmative consent to his continued employment. Petitioner does not dispute that when he reported to work for the first day of the new school year on September 3, 2010, the principal of M.S. 429 immediately notified petitioner that his probation had been discontinued, he was not allowed to teach, and he was not compensated for any day after his probationary period. These actions unquestionably demonstrate that respondents neither intended nor permitted the perpetuation of petitioner's employment beyond his probationary period. Andrews v. Board of Educ. of the City School Dist. of the City of NY, 92 AD3d at 465; Ronga v. Klein, 81 AD3d at 568.

Because petitioner fails to establish that he acquired tenure by estoppel, he is not entitled to a hearing before the termination of his teaching service pursuant to Education Law § 3020-a. Therefore the court denies a declaratory judgment to that effect.

IV.THE 2010 DISCONTINUANCE OF PETITIONER'S PROBATIONARY EMPLOYMENT A.Standards for Discharging a Probationary Employee

Absent bad faith, a violation of law, or a constitutionally impermissible purpose, respondents, a New York City governmental entity and official, may discontinue petitioner's probationary employment as a Mathematics teacher for any reason or none at all. NY Educ. Law §§ 2573(1)(a), 3012(1)(a); Kahn v. New York City Dept. of Educ., 18 NY3d at 471; Goonewardena v. State of NY Workers' Compensation Bd., 95 AD3d 638; Kolmel v. City of New York, 88 AD3d 527, 528 (1st Dep't 2011); Che Lin Tsao v. Kelly, 28 AD3d at 321. To sustain a claim for reversal of the discontinuance as a probationary City employee and for reinstatement, petitioner bears the burden to demonstrate that his discharge was for a constitutionally impermissible reason, otherwise in violation of law, or in bad faith. Frasier v. Board of Educ. of City School Dist. of City of NY, 71 NY2d 763, 765 (1988); Zarinfar v. Board of Educ. of City School Dist. of City of New York, 93 AD3d at 467; Kolmel v. City of New York, 88 AD3d at 528.

B.Petitioner's U-Rating

In this proceeding, petitioner seeks judicial review of his U-rating for the 2009-2010 school year only insofar as the infirmities in that rating support his challenge to respondents' termination of his probationary employment as arbitrary or irrational. Respondents' witness, the payroll secretary at M.S. 429 who prepared petitioner's 2009-2010 APPR report, attests that she notified petitioner of his U-rating for 2009-2010, that the original satisfactory rating he received was due to a clerical error, and that she requested that petitioner sign the corrected APPR report with the U-rating, but he refused. Aff. of Danetta Ellison Williams ¶¶ 7-11; V. Answer Ex. R, at 2-3. The corrected report's content or omissions and other surrounding circumstances nevertheless raise several questions undermining its validity and any reliance on it.

Respondents claim that petitioner received the U-rating for the 2009-2010 school year due to a student's allegations against him of verbal abuse that were substantiated after an investigation. Petitioner's corrected 2009-2010 APPR report, however, provides no reason from his personnel file supporting the U-rating, nor recommendation regarding the status of his probationary service. No documentation is attached to the report explaining the U-rating or any discontinuance. V. Answer Ex. T. See Friedman v. Board of Educ. of City School Dist. of City of NY, 109 AD3d 413, 970 N.Y.S.2d 521, 522 (1st Dep't 2013). The corrected report with the U-rating signed by the school principal is dated June 24, 2010, yet the school payroll secretary attests that she generated the corrected report June 29, 2010. Aff. of Danetta Ellison Williams ¶¶ 9-10; V. Answer Ex. R, at 2-3.

These substantive and procedural deficiencies and irregularities in the 2009-2010 APPR report provide grounds to conclude that the U-rating was "without sound basis in reason," "without regard to the facts," and therefore arbitrary. Pell v. Board of Educ., 34 NY2d 222, 231 [*5](1974). See Goodwin v. Perales, 88 NY2d 383, 394-95 (1996); Friedman v. Board of Educ. of City School Dist. of City of NY, 109 AD3d 413, 970 N.Y.S.2d at 521-22. Nevertheless, a defective APPR report alone does not invalidate respondents' discontinuance of petitioner's probationary employment absent a showing that the discontinuance was in violation of law, in bad faith, or arbitrary. Brown v. Board of Educ. of the City School Dist. of the City of NY, 89 AD3d 486, 487-88 (1st Dep't 2011).C.Respondents Demonstrate Grounds Supporting the Discontinuance of Petitioner's Probationary Employment.In the absence of a constitutional, statutory, or regulatory violation, the discharge of a probationary employee is not in bad faith where the record shows the employee's unsatisfactory performance. Johnson v. Katz, 68 NY2d 649, 650 (1986); Goonewardena v. State Workers Compensation Bd., 95 AD3d at 638; Brown v. Board of Educ. of the City School Dist. of the City of NY, 89 AD3d at 487-88; Bienz v. Kelly, 73 AD3d 489, 490 (1st Dep't 2010). Respondents provide sufficient grounds establishing a good faith, rational basis to support their decision to discontinue petitioner's probationary service as a teacher of Mathematics at M.S. 429. The student's allegations in May 2010 of verbal abuse by petitioner were substantiated after an investigation by the school's administrators. Nothing in the record, which includes statements from students and other witnesses regarding the incident, indicates that the investigation was conducted illegally, in bad faith, or irrationally. Respondents' finding that petitioner verbally abused the student in violation of respondent Chancellor's Regulations A-421 thus establishes the requisite good faith, rational basis to terminate petitioner's probationary employment. Goonewardena v. State Workers Compensation Bd., 95 AD3d at 638;

, 73 AD3d at 490.

Although petitioner has shown that respondents failed to give him the requisite notice of his discontinuance at any time before his probationary period expired, NY Educ. Law §§ 2573(1)(a) and 3012(2), a violation of the notice requirement neither invalidates nor renders arbitrary respondents' termination of petitioner's probationary employment. Kahn v. New York City Dept. of Educ., 79 AD3d 521, 522 (1st Dep't 2010), aff'd, 18 NY3d 521 (2012). He is entitled, however, to be compensated for the 60 days that the notice was late. Vetter v. Board of Educ., 14 NY3d 729, 731 (2010); Tucker v. Board of Educ., Community School Dist. No. 10, 82 NY2d 274, 277-78 (1993). See Curio v. New York City Dept. of Educ., 55 AD3d 438, 439 (1st Dep't 2008).

D.Petitioner Demonstrates Grounds Supporting a Conclusion That the Discontinuance Was Motivated by Bias Against His National Origin and Age.The record in this proceeding amply supports petitioner's charge that the student whom petitioner was found to have abused and his co-employees harbored a bias against him based on his Iranian descent. Petitioner's Verified Reply alleges that petitioner repeatedly complained to the school principal and assistant principal about the student that: She constantly says, I do not know how to teach & should go back to my old country because I do not fit in here. This has been going on for the last three weeks.

V. Reply Ex. C, at 1. Petitioner also alleges that he complained to the school principal and assistant principal about a colleague's comments that: You do not fit in to teach here because you have a cultural problem. You should go back to your country and teach your people.

V. Reply Ex. F. Although petitioner further alleges that school administrators took no action to abate either the student's or the colleague's biased comments, the repeated comments and the lack of responsive discipline do not, without more, demonstrate the school administrators' bias toward [*6]him or a causal connection between the bias and his discharge.

Petitioner alleges more. He attests that school administrators gave the teacher who made the biased comments a position in preference to petitioner. He also attests that only five of the 37 teachers at M.S. 420 were over 40 years of age and, at 52 years of age, he was replaced by a teacher under 30 years of age. V. Reply at 7.

Particularly in the face of respondents' failure to address any of these allegations in their record, these allegations meet petitioner's burden to demonstrate that respondents discharged him for unlawfully biased reasons and that their proffered reason for his discharge was merely a pretext for discrimination based on his national origin or age. NY Exec. Law § 296(1), (3-a), and (6); N.Y.C. Admin. Code § 8-107(1)(a) and (b); Ferrante v. American Lung Ass'n, 90 NY2d 623, 626, 629-30 (1997); Baldwin v. Cablevision Sys. Corp., 65 AD3d 961, 965 (1st Dep't 2009); Bemis v. New York State Div. of Human Rights, 26 AD3d 609, 611-12 (3d Dep't 2006). See Zarinfar v. Board of Educ. of City School Dist. of City of New York, 93 AD3d at 467; Kolmel v. City of New York, 88 AD3d at 528. Evidence that respondents preferred a teacher who disparaged petitioner's national origin, particularly if the other teacher was of a national origin more homogeneous with the teacher population or was under 40 years of age, for a position over petitioner specifically raises an inference that he was not retained or was discharged due to discrimination based on his national origin or age. Ferrante v. American Lung Ass'n, 90 NY2d at 626-27; Bemis v. New York State Div. of Human Rights, 26 AD3d at 610-11. Evidence that the position for which he was not retained or from which he was discharged was filled by a teacher much younger or of European descent, for example, likewise supports the inference that petitioner's discharge was affected by considerations of age or national origin. Wiesen v New York Univ., 304 AD2d 459, 460 (1st Dep't 2003); Bemis v. New York State Div. of Human Rights, 26 AD3d at 610-11. Statistical evidence showing a gross disparity between the percentages of teachers under versus over 40 years of age is particularly valuable in supporting a bias based on petitioner's age. Baldwin v. Cablevision Sys. Corp., 65 AD3d at 966-67; Bemis v. New York State Div. of Human Rights, 26 AD3d at 610-11.

Relying on the substantiated allegations of verbal abuse by petitioner toward the end of the 2009-2010 school year after an investigation by administrators, conduct that violated the Chancellor's regulations and led to an unsatisfactory rating of petitioner for that school year, respondents have proffered a legitimate reason for his discharge from probationary employment. Stephenson v. Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 270-71 (2006); Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305 (2004); Melman v. Montefiore Med. Ctr., 98 AD3d 107, 120 (1st Dep't 2012). Nevertheless, the original satisfactory rating, conflicting evidence of when the corrected report was executed, and its omission of any reasons for the unsatisfactory rating or any recommendation for discontinuance of petitioner's probationary employment, despite directions for this information, undermine the truth of respondents' subsequently offered reason for the discontinuance. Forrest v. Jewish Guild for the Blind, 3 NY3d at 305; Melman v. Montefiore Med. Ctr., 98 AD3d at 114. Respondents' failure to notify petitioner of the discontinuance, as statutorily required, NY Educ. Law §§ 2573(1)(a), 3012(2), before his probationary employment expired, further suggests the implausibility of respondents' account. Nor may the origin of this sequence of events be ignored: the charge launched by a student who also launched discriminatory charges against petitioner.

Respondents' abject failure to respond to petitioner's repeated complaints of repeated biased comments that petitioner was out of place, disparaging his Iranian descent, demonstrates that discrimination against his advanced age in comparison to his co-employees or against his national origin may have been at least one of the motivating factors for his discharge. Melman v. Montefiore Med. Ctr., 98 AD3d at 127; Williams v. New York City Hous. Auth., 61 AD3d 62, 78 n.27 (1st Dep't 2009). This evidence, in conjunction with the evidence that the co-employee who expressed the bias was preferred for a position over petitioner and that a person who "fit in" replaced him and the statistical evidence of who "fit in," sustains a claim that respondents' proffered reason for petitioner's discharge was a pretext for a discriminatory reason.

Although petitioner's allegations of discrimination were in respondents' administrative record, petitioner did not specifically raise them in this proceeding until he replied to respondents' answer, which was accompanied by their record. See Feliciano v. New York City Health & Hosps. Corp., 62 AD3d 537, 538 (1st Dep't 2009); Home Ins. Co. v. Leprino Foods Co., 7 AD3d 471 (1st Dep't 2004); Gaud v. Markham, 307 AD2d 845, 846 (1st Dep't 2003); NYCTL 1996-1 Trust v. Railroad Maintenance Corp., 266 AD2d 39, 40 (1st Dep't 1999). If the failure to raise claims initially deprives respondents of an opportunity to respond, the court ordinarily may not consider claims raised for the first time in reply. Sylla v. Brickyard Inc., 104 AD3d 605, 606 (1st Dep't 2013); Calcano v. Rodriguez, 103 AD3d 490, 491 (1st Dep't 2013); Martinez v. Nguyen, 102 AD3d 555, 556 (1st Dep't 2013); JPMorgan Chase Bank, N.A. v. Luxor Capital, LLC, 101 AD3d 575, 576 (1st Dep't 2012). Petitioner's additional allegations, however, include the fact that he has pursued his claims of bias based on his national origin and age before the New York State Division of Human Rights (NYSDHR), which may explain why he has raised these claims as an afterthought here.

Consequently, even had petitioner raised these claims of discrimination in his petition, before he may be entitled to a hearing on them in this forum, he must address the extent to which his pursuit of the NYSDHR proceeding disposes of these claims, to which respondents are entitled to respond. NY Exec. Law § 297(9); Freudenthal v. County of Nassau, 99 NY2d 285, 290 (2003); Marine Midland Bank v. New York State Div. of Human Rights, 75 NY2d 240, 243-44 (1989); Pan Am World Airways v. New York State Human Rights Appeal Bd., 61 NY2d 542, 548 (1984); Emil v. Dewey, 49 NY2d 968, 969 (1980). See Hawkins v. New York City Tr. Auth., 26 AD3d 169, 170 (1st Dep't 2006); Barr v. BJ's Wholesale Club, Inc., 62 AD3d 820, 821 (2d Dep't 2009). In the event that proceeding is not dispositive of these claims, this opportunity for respondents to respond also will permit them to address the claims on their merits and will negate any prejudice from petitioner's belated pursuit of the claims here. Held v. Kaufman, 91 NY2d 425, 430 (1998); Polir Constr. v. Etingin, 297 AD2d 509, 511 (1st Dep't 2002); Perilla v. Akanda, 14 Misc 3d 555, 558 (Sup. Ct. Bronx Co. 2006).

V.DISPOSITION

For the reasons explained above, the court grants the petition to annul respondents' termination of petitioner's probationary employment and to reinstate petitioner to his teaching position with retroactive compensation and related entitlements, only to the extent of granting a further hearing on the preclusive effect of petitioner's complaint to NYSDHR. If that complaint is not preclusive, the court also will consider respondents' response to petitioner's prima facie showing that respondents discharged him for unlawfully biased reasons and that their proffered reason for his discharge was merely a pretext for discrimination based on his national origin or age.

Consequently, within 30 days after service of this order with notice of entry, petitioner shall serve and deliver to Part 46 any further affidavits and memorandum addressing these issues. Within 30 days after service of any affidavit or memorandum by petitioner, respondents shall serve and deliver to Part 46 any response. After expiration of respondents' time to respond, the court will schedule a further hearing on the petition.

In the event that, after a hearing, the court denies the petition, petitioner still will be entitled to 60 days of compensation at his final rate of pay, plus interest from the date his probationary period expired. C.P.L.R. §§ 3211(a)(7), 7803(3), 7804(f). Even if the court otherwise dismisses this proceeding, if respondents have not compensated him for the 60 days when he received no written notice of his discontinuance, he will be entitled to a judgment for that compensation plus interest from August 30, 2010. C.P.L.R. § 7806.

DATED: September 16, 2013

_____________________________

LUCY BILLINGS, J.S.C.