Join the GOOGLE +Rubber Room Community

Friday, April 1, 2011

The Issue Is: When You File An Article 78, Do You Have To File A Notice Of Claim Against The BOE?

Gebran v New York City Dept. of Educ.

2011 NY Slip Op 50486(U)
Decided on March 7, 2011
Supreme Court, Kings County
Schmidt, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
is opinion is uncorrected and will not be published in the printed Official Reports.

Nagib Gebran, Petitioner,


New York City Department of Education, Respondent.

Petitioner's Counsel: Michael Rhode, PO Box 20021, Park West Finance Station
Respondent's Counsel: Corporation Counsel, 100 Church Street NY NY by James Hallman Esq.

David I. Schmidt, J.

Upon the foregoing papers, petitioner Nagib Gebran (Gebran) moves for a judgment:

(1) pursuant to CPLR 7803 (3), annulling the "Unsatisfactory" teacher's rating ("U" or U-rating) he received on the Annual Professional Performance Review and Report on Probationary Service of Pedagogical Employee for the 2007-2008 school year or changing the U-rating to a "C" or "S" rating (and removing three particular untimely letters in support [*2]of the rating from file);

(2) declaring said determination arbitrary, capricious, and without rational basis in the record; and

(3) pursuant to CPLR 7806, awarding actual compensatory damages incidental to the U-rating, up to and including the full salary petitioner might have earned during the 2009-2010 school year in the amount of $95,200, and the costs and disbursements of this proceeding.

Respondent the New York City Board of Education (the BOE) (a/k/a, s/h/a, d/b/a the New York City Department of Education) cross-moves for an order, pursuant to CPLR 7804 (f) and 3211 (a) (7), dismissing the Petition on the grounds that (1) the Petition fails to state a cause of action that the decision to issue petitioner a U-rating was arbitrary, capricious, or unlawful, and (2) petitioner has failed to file a timely notice of claim against the BOE pursuant to New York Education Law 3813 (1).


Gebran is a tenured teacher at the New Horizons School, M.S. 442 (New Horizons) in Brooklyn, New York, where he has taught since 1985. He never received any unsatisfactory ratings during his annual performance reviews until the 2007-2008 school year. He commenced this Article 78 proceeding against the BOE to annul or change the U-rating he received for the 2007-2008 school year. Petitioner alleges that during the past few years, his medical problems have caused him to suffer seizures and that respondent has not accommodated his disability.

In September 2007, Gebran suffered a seizure while teaching and his medical condition forced him to take an approved medical leave of absence, which ran from approximately October 2007 until February 1, 2008. Petitioner then suffered a second seizure during class on February 15, 2008, which forced him to take a second approved medical leave of absence from February 16, 2008 through the remainder of the school year.

The February 25, 2008 Letter

Prior to taking leave, petitioner was involved in various incidents during the 2007-2008 school year for which respondent wrote letters to his personnel file. A February 25, 2008 letter (the February 25th Letter, annexed as Exhibit A to respondent's cross motion) concerned an event that occurred on February 1, 2008, when the Principal of New Horizons and petitioner's rating officer, Marylou Aranyos (Principal Aranyos), observed petitioner playing chess with his students during what should have been an instructional science class. The letter refers to a conference on February 7, 2008 that petitioner attended with union representative Lisa Merill to discuss the incident on February 1st. According to the letter, when asked why he engaged in this activity during instructional hours, Gebran responded, among other things, that he and his co-teacher had mutually agreed that chess would be a [*3]good incentive and motivation and that he had told his students they could play chess as a reward during the second portion of the two-period science class if they behaved. Gebran also testified that he was hired partly for his specialized knowledge of chess, which the school administration purportedly knew Gebran would be using to help teach math and science, given that Gebran possessed a patent on a chess set which combined chess with math and science.

Principal Aranyos concluded in the February 25th Letter that petitioner was in fact playing chess with his students during a scheduled science class. She called petitioner's behavior "unacceptable and unprofessional," and warned that such misconduct could "lead to further disciplinary action including an unsatisfactory rating and disciplinary charges that could lead to termination of [his] employment."

The September 11 and 12, 2008 Letters

Petitioner was also involved in various incidents on February 12, 13, and 14 that occurred during the 2007-2008 school year, prior to taking his medical leave. According to respondent, those matters could only be addressed when petitioner returned from leave, and petitioner was thus given a "C" rating in the interim for the 2007-2008 school year (see 2008 Annual Professional Performance Review, dated June 12, 2008, annexed as Exhibit 2 to the Petition). Petitioner claims that he never received the original rating form until after the BOE Hearing on January 5, 2010 (discussed further below) and was never informed that he was initially given a "C" rating.

Upon Gebran's return to teaching in September 2008, Principal Aranyos resumed her investigations into those incidents. Once complete, letters concerning the incidents were added to petitioner's file. First, respondent added to petitioner's file a letter, dated September 11, 2008 (the September 11th Letter, annexed as Exhibit 10 to the Petition), which related to the incidents on February 12 and 13. The September 11th Letter first addressed an incident on February 12th, in which petitioner tore up a student's test paper in front of the entire class and threw it in the garbage because the student was allegedly misbehaving. It also discussed an incident on February 13th, in which petitioner similarly tore up a second student's test in a different class that he taught.

After reviewing the allegations of both the February 12 and 13 incidents and the statements made at the September 5th Meeting (discussed further below), Principal Aranyos concluded that petitioner did in fact tear up both students' exams and throw them in the garbage, and that he also yelled at the student during the latter incident. In the September 11th Letter, Principal Aranyos indicated that "[petitioner's] actions created a serious endangerment to the students involved" and that "[petitioner] failed to utilize the ladder of referral which mandated that [he] contact the Dean if [he] was having problems with students [as outlined in the school handbook]."

Respondent submitted a second letter for petitioner's file, dated September 12, 2008 (the September 12th Letter, annexed as Exhibit 12 to Petition), which related to an incident on February 15, 2008 and referred to petitioner's "failure to follow proper procedure." The [*4]letter stated that petitioner left the school building fifty minutes early on February 15, 2008 without notifying Principal Aranyo or obtaining permission. According to the letter, Principal Aranyo apparently went to speak with Gebran in his classroom at about 1:30 p.m. on that date and was informed by his co-teacher that petitioner had put on his coat and stated that he would not be returning to school for the remainder of the year.

However, according to petitioner, he had suffered a seizure that day. He claims that he did not leave school early, but instead went to the teacher's lounge during the last period of the day, which was a scheduled "prep period" for him. Because he suspected that Principal Aranyos was harassing him for his seizures, he went to her office to request a meeting with his union leader and an attorney. In response, she "unnecessarily and improperly started yelling and screaming, help, security' when discussing the incident with [him]."

Both the September 11th and 12th Letters advised that his misconduct could "lead to further disciplinary action including an unsatisfactory rating" as well as termination of employment. Both letters also referenced a meeting on September 5, 2008 (the September 5th Meeting) which was attended by petitioner, Lisa Reiter (Reiter), his union representative, Principal Aranyos, and Assistant Principal Deanna Diable (Diable) to discuss the incidents that had occurred on February 12-14 and subsequent allegations of misconduct. The letters further explained that the meeting could not be held sooner because school was on mid-winter recess during the week of February 18, 2008, and petitioner was out on approved medical leave from February 25, 2008 through the remainder of the school year.

Petitioner's Grievance Re: the September 11th and 12th Letters

Petitioner filed a grievance on or about September 25, 2008, claiming that his rights pursuant to the collective bargaining agreement (the CBA) between the United Federation of Teachers (the UFT) and the BOE had been violated when the September 11th and 12th Letters were placed in his file over three months after the incidents occurred and well after the close of the school year. On or about October 2, 2008 (the October 2nd Meeting), petitioner and Reiter met with Principal Aranyo to discuss petitioner's grievance. In a letter dated October 2, 2008 (the Grievance Denial Letter), Principal Aranyo denied petitioner's grievance, stating, "I deny your grievance because I was unable to meet with you before September of 2008 since you were out of school on an unpaid medical leave of absence from February 23, 2008 through the end of the year."

Gebran appealed the grievance denial pursuant to the procedures in the CBA, and had an opportunity to be heard at a conference held on or about October 23, 2008 (the Grievance Conference). At the hearing, petitioner and his UFT representative, Arthur Solomon, argued that the BOE had violated the CBA because the letters regarding the February 2008 incidents were not added to petitioner's file within three months of their occurrence, as required under Article 21 (A) (1) of the CBA. However, Chancellor Joel I. Klein (Chancellor Klein) of the [*5]BOE denied the grievance in a letter, dated November 5, 2008, concluding that the school's administration was unable to investigate the incidents within three months because Gebran took a medical leave of absence immediately following the incidents (see Grievance Decision, annexed as Exhibit 9 to Petition). He further reasoned that, consistent with the objective of the three-month deadline to prevent delay in preparing materials to be placed in a personnel file, "the administration did not delay in that [Principal Aranyo] acted in an expeditious manner as soon as [petitioner] returned to work" (id.).

The UFT chose not to invoke arbitration under the provisions of the CBA to further challenge the BOE's decision to deny petitioner's grievance, but petitioner appealed the UFT's decision not to pursue arbitration. After hearing the appeal, the UFT still was not persuaded that petitioner's grievance merited arbitration, and opined that the administration acted properly in waiting until petitioner returned from medical leave to hold a meeting before writing a letter to his personnel file.

The December 12, 2008 Letter

The last letter in petitioner's file on which this proceeding is based is dated December 12, 2008 (the December 12th Letter, annexed as Exhibit 13 to Petition) and relates to petitioner's excessive absences. The letter states that petitioner was absent from work fifteen times during the 2007-2008 school year, specifically excluding the time periods from October 16, 2007 to January 31, 2008 and February 25, 2008 to June 30, 2008, when petitioner was on approved medical leave. At a conference on September 19, 2008 to discuss those absences, however, petitioner, who was again accompanied by Reiter, claimed that the absences were all "medically certified absences." After reviewing his attendance history and considering his responses at the conference, Principal Aranyo determined that his absences were "excessive as defined by the attached School Attendance Policy . . . [which] states that five or more absences per semester (10 or more per year) are considered to be excessive and will be reviewed for rating purposes." Gebran refused to sign the letter in acknowledgment.

The U-rating and the BOE's Determination

On or about December 16, 2008, petitioner received an amended U-rating on his 2008 Annual Review, with individual U-ratings in eleven out of the possible twenty-three qualities and skills categories. As Aranyo retired from the BOE sometime in December 2008, Diable signed and dated the amended rating form with her own name when she became principal during mid-December 2008. However, she later testified that the manner in which she signed the form was a mistake; she conceded that she should have instead signed former-principal Aranyo's name and included her own initials, since the former principal was the person that instructed her to issue the U-rating. When Diable presented the rating sheet to petitioner during an instructional period, he refused to sign it.

Petitioner challenged the U-rating and the placement of the supporting letters in his personnel file, but his grievance was denied after a hearing, pursuant to Section 4.3.2 of the New York City Department of Education Bylaws, which took place on or about January 5, 2010 (the BOE Hearing). The union declined to invoke arbitration for his grievance. [*6]Petitioner appealed to the Chancellor's Committee, but it denied his appeal and sustained the U-rating. The Deputy Chancellor, as the Chancellor's designee, adopted that recommendation on May 3, 2010, affirming the June 2008 decision to issue petitioner a U-rating for the 2007-2008 school year as a result of his poor professional performance and excessive absences (the Final Determination, annexed as Exhibit 1 to the Petition).

On or about August 10, 2010, petitioner commenced the instant Article 78 proceeding seeking to annul the December 16, 2008 U-rating he received for the 2007-2008 school year. Currently, petitioner is still away on medical leave.


Initially, Gebran suggests that Chairperson Stephen Hinds (Chairperson Hinds), the hearing officer who presided over the BOE Hearing on January 5, 2010, was impartial because he pursued a cross-examination of petitioner and his union representative by himself, even though Diable declined to conduct any questioning of petitioner. Petitioner asserts that he worked a total of only five weeks during the 2007-2008 school year due to his medical problems, and should have been rated a "C," which he suggests is the appropriate rating used to rate teachers who could not be properly rated. Moreover, he contends that the "U" rating for the 2007-2008 school year was arbitrary and capricious because three of the four letters (the September 11th and 12th and December 12th Letters) on which the U-rating was based were not admissible, given that they were placed in his file over three months after the corresponding incidents occurred, and should be removed from his file as violative of Article 21 (A) (1) of the CBA. He further maintains that the rating was untimely because it was given to him six months after the end of the school year in question, rather than within the last four school days to ten days of the school year, as delineated in the Regulations of the Chancellor Regarding Ratings (former Bylaw Section 89.7).

Petitioner then argues that the U-rating was not properly authorized because it was unclear whether Aranyos or Diable was the principal on the date the rating was rendered. Also, he challenges the U-rating because he was not formally observed during that period and given the limited time that he was at work during that year. As a backdrop, he asserts that respondent allowed a work environment intolerant and hostile to his medical condition to exist and failed to provide the proper accommodations for his medical condition as required by law. Finally, petitioner argues that he should be awarded compensatory damages incidental to the U-rating, upon annulment of the U-rating, because he had to take multiple unpaid Leaves of Absence for Restoration of Health in 2009 and 2010 in order to avoid working in a hostile and stressful environment at New Horizons, and because the "U" on his record made it difficult or impossible for him to transfer to another school.

The BOE cross-moves to dismiss the Petition, arguing that it fails to state a cause of action for annulling the U-rating, since it was supported by a number of letters regarding various incidents during the 2007-2008 school year. In that respect, the BOE asserts that, although petitioner disagrees with the account of the incidents and resulting letters, he does not dispute the fact that the U-rating was based substantially on those letters. Respondent [*7]further indicates that, although the Petition alleges that the BOE improperly allowed the letters regarding the February incidents to be added to petitioner's file, it does not deny that the incidents of unprofessional conduct occurred. With regard to petitioner's claims that the amended U-rating was untimely issued, respondent avers that the deadlines cited by petitioner in the handbook "Rating Pedagogical Staff Members" (the Ratings Manual, annexed as Exhibit 6 to Petition) are not mandatory. Lastly, the BOE contends that petitioner's claims are barred because he failed to file a timely notice of claim pursuant to Section 3813 of the Education Law within three months of the BOE's Final Determination on May 3, 2010.

Petitioner opposes respondent's cross motion on the grounds that he has indeed filed an application to extend the time to serve the notice of claim by seven days to August 10, 2010 by requesting that the court deem, nunc pro tunc, his Petition a notice of claim. In any event, petitioner maintains that he seeks to vindicate certain public interests which preclude him from having to comply with the notice of claim requirements under Education Law � 3813. He avers that his rating was not authorized to be amended by anyone other than the designated rating officer for the 2007-2008 school year, and that such an issue qualifies as a constitutionally protected right to continued employment.


At the outset, the court first addresses the BOE's cross motion to dismiss the Petition based on petitioner's failure to file a notice of claim within three months after the accrual of his claims. Section 3813, subdivision 1, of the Education Law provides, in relevant part:

"1. No action or special proceeding, for any cause whatever ... shall be prosecuted or maintained against any school district, board of education, [or] board of cooperative educational services . . . or any officer of a school district, board of education, [or] board of cooperative educational services ... unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action . . . is founded was presented to the governing body of said district ... within three months after the accrual of such claim, and that the . . . body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment."

As the Court of Appeals has interpreted the statute, "[t]he Legislature has spoken unequivocally that no action or proceeding may be prosecuted or maintained against any school district or board of education unless a notice of claim has been presented to the governing body,' and this court may not disregard its pronouncement" (Parochial Bus Sys., Inc. v Bd. of Educ., 60 NY2d 539, 549, [1983] [citations omitted]). The petitioner bears the burden of pleading and proving that he or she filed a notice of claim within three months after the accrual of his or her claim (see C.S.A Contr. Corp. v New York City School Constr. Auth., 5 NY3d 189, 192 [2005]; Stoetzel v Wappingers Cent. School Dist., 166 AD2d 643, 644 [1990]). Although the failure to present notice of a claim within ninety days of its accrual is generally a fatal defect, an exception has been carved out for actions which seek [*8]vindication of a public interest, as opposed to actions that seek the enforcement of private rights (see Biggers v Brookhaven Comsewogue Union Free School Dist., 127 F Supp 2d 452, 455 [SDNY 2001], citing Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, 379 80 [1974]). Thus, a notice of claim pursuant to Education Law § 3813 (1) is not a condition precedent to an Article 78 proceeding seeking to vindicate a public interest (see Matter of Cayuga Onondaga Counties Bd. of Coop. Educ. Servs. v Sweeney, 89 NY2d 395, 400 [1996]; Kight v Wyandanch Union Free School Dist., 84 AD2d 749 [1981], affd 56 NY2d 606 [1982]). Although "[a]ll actions brought to enforce civil rights can be said to be in the public interest" (Mills v County of Monroe, 59 NY2d 307, 311, [1983], cert denied, 464 US 1018 [1983]), "actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group" are deserving of special treatment, such as relief from the notice requirement (see Id. at 311-12).

Here, the BOE's Determination affirmed petitioner's U-rating on May 3, 2010, and petitioner was required to file a notice of claim no later than August 3, 2010, which was three months after his claims regarding the U-rating accrued. However, petitioner has not proven that he filed a notice of claim at any time prior to commencing this proceeding. First, petitioner's argument that he is not bound by the notice of claim requirement lacks merit. In his Petition, Gebran seeks a monetary award of $95,200 in actual compensatory damages for the full salary petitioner might have earned during the 2009-2010 school year, as well as costs and disbursements, and "[s]uch other relief as this Court may deem just and proper." Courts have consistently held that where a party demands money damages they are seeking "resolution of a private dispute and not the vindication of an important public right" (Hermele v Union Free School Dist. No. 23,167 AD2d 512 513 [1990]; Matter of McClellan v Alexander Cent. School Bd. of Educ., 201 AD2d 898, 898-899 [1994] [where petitioner sought the vindication of his private rights to back pay and benefits, in addition to his reinstatement as a vindication of a public interest, he was not exempt from the notice of claim requirements under Education Law � 3813]; Matter of Vail v Board of Coop. Educ. Servs., 115 AD2d 231 [1985]; W v City of New York, 24 Misc 3d 1224[A], 2009 NY Slip Op 51606[U], *8 [2009]). Although petitioner argues that the discriminatory nature of his claims, generally, is relevant to the public interest, this action seeks relief only for claims relating to his U-rating, and the money damages sought are to redress his own lost wages. "Inasmuch as the disposition of plaintiff's claim was not intended to nor could it directly affect or vindicate the rights of others, [his] action is properly characterized as one seeking the enforcement of private rights" (Mills, 59 NY2d at 312). Therefore, petitioner is not exempt from the notice of claim requirements under Education Law § 3813 (1).

Gebran then requests in his Application to Extend the Time to Serve a Notice of Claim that the court extend his deadline by seven days to August 10, 2010 and treat his Petition as a notice of claim. However, that application was not made until approximately November [*9]26, 2010.[FN1] In any event, where an application for leave to file a late notice of claim is timely, the court has discretion to extend the time for petitioner to file a notice of claim, as long as such an extension would not exceed the four-month statute of limitations applicable to Article 78 proceedings (see Education Law § 3813 [2-a], [2-b]), which the extension herein would not.[FN2] Insofar as petitioner requests that the court deem the Petition a notice of claim, courts have stated that a defendant is put on notice of claims asserted against it when the essential elements thereof are communicated to the defendant, including the nature of the claim, the time when, the place where, and the manner in which the claim arose (see Parochial Bus Sys. v Bd. of Educ. of City of New York, 60 NY2d 539, 547 [1983]). Indeed, the Petition sufficiently alerts the BOE of these matters. Petitioner did not actually request leave until November 2010, and moving for leave to file a late notice of claim after the deadline's expiration may be considered untimely and fatal (see e.g. Tarquino v City of New York, 84 AD2d 265 [1982][untimely where leave to file a late notice of claim was not sought until almost four years after the subject accident, well beyond the ninety-day deadline for filing a notice of claim pursuant to General Municipal Law � 50-e in an action against the city]; Colon v City of New York, 116 Misc 2d 729, 731-732 [1982] [untimely where leave was not sought until nearly two years after the subject accident]). However, in light of petitioner's relatively short seven-day delay for providing respondent with actual notice, relatively short three-month delay for seeking leave, the sufficiently descriptive Petition which Gebran adequately served on respondent (see Pope v Hempstead Union Free School Dist. Bd of Educ., 194 AD2d 654, 656 [1993]), and the lack of substantial prejudice to respondent, the court will nevertheless consider the Petition sufficient to satisfy Gebran's statutory duty to provide respondent with notice of its claims (see Gelish v Dix Hills Water [*10]Dist., 58 AD3d 841, 842 [2009] [where serving notice of claim less than one month after the ninety day deadline was considered a reasonable and minimal delay that did not cause substantial prejudice]).

Turning to the merits of the Petition, under CPLR 7803 (3), the relevant question is "[w]hether a determination was made in violation of lawful procedure, was affected by error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed." Judicial review of an administrative determination brought by an Article 78 proceeding is "limited to the evaluation of whether that administrative determination is consistent with lawful procedures, whether it is arbitrary or capricious, and whether it is a reasonable exercise of the agency's discretion" (Matos v Hernandez, 10 Misc 3d 1068[A], 2005 NY Slip Op 52188[U], at *2-3, citing Matter of Pell v Board of Educ. of Union Free School Dist., 34 NY2d 222, 230-231 [1974]). Thus, a court may disturb a respondent's actions only if they were either arbitrary and capricious or lacked a rational basis (see Matter of Hughes v Doherty, 5 NY3d 100, 105 [2005] ["(u)nless the administrative agency's determinations were arbitrary or capricious, a court should not undermine its actions"] [internal citations omitted]; Matter of Pell, 34 NY2d at 231["where a determination is made and the person acting has not acted in excess of his jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of his discretionary power, including discretion as to the penalty imposed, the courts have no alternative but to confirm his determination"] [internal citations omitted]). "A rational or reasonable basis for the agency's determination exists if there is evidence in the record to supports its conclusion" (see Gill v Hernandez, 22 Misc 3d 390, 394 [2008], citing Sewell v New York, 182 AD3d 469, 473 [1992]). If the administrative determination is determined to be rational, the court must defer to the agency's interpretation of its own regulations in making its determination; however, if the court finds that the agency determination is rational, it may not substitute its judgment for that of the agency (see Howard v Wyman, 28 NY2d 434, 438 [1971]). Judicial review of an administrative determination is so deferential that courts have said the administrative determination "must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law'" (Mayes v Hernandez, 17 Misc 3d 1140[A], 2007 NY Slip Op 52351 [U], *4 [2007], citing Featherstone v Franco, 95 NY2d 550, 554 [2000]).

The Ratings Manual, which incorporates the Regulations of the Chancellor Regarding Ratings (former Bylaw Section 89.7) and has been upheld as binding law (see Budnick v New York City Dept. of Educ., 25 Misc 3d 1235[A], 2009 NY Slip Op 52425[U] [2009]; Smith v Board of Educ. of City School Dist. of City of NY, 18 Misc 3d 192 [2007]), states that "[w]ithin the last ten (10) days of each school year and not fewer that four (4) school days prior to the close thereof, the principal of each school shall give to each member of his/her staff a signed statement characterizing his/her work as Satisfactory or Unsatisfactory." Similarly, Article 21 (A) (1) of the CBA provides that "an incident which has not been reduced to writing within three months of its occurrence, exclusive of the summer vacation [*11]period, may not later be added to [a teacher's] file." Petitioner challenges the BOE's Final Determination as arbitrary and capricious because both the U-rating as well as the letters on which they were based were allegedly untimely: the "U" was issued in December 2008 (approximately six months after the end of the 2007-2008 school year for which petitioner was being rated), and the September 11th and 12th and December 12th Letters were placed in petitioner's file seven and ten months after their corresponding incidents, respectively.

Given the great deference afforded to administrative determinations, the court finds that "it [was] a reasonable exercise of the agency's discretion" (Matter of Social Serv. Empls. Union, Local 371 v New York City Bd. of Collective Bargaining, 47 AD3d 417, 418 [2008]) for the BOE to base its issuance of petitioner's U-rating on the September 11th and 12th and December 12th Letters, even though those letters were purportedly untimely. Upon petitioner's return to teaching the following school year, the BOE acted expeditiously to investigate and place letters regarding petitioner's incidents and absences in his file. Furthermore, the court agrees that the BOE's decision to toll the time period for investigating and placing the letters in petitioner's file, due to petitioner's taking of medical leave for the remainder of the 2007-2008 school year, was entitled to deference (see Red Apple Child Dev. Ctr. v Chancellor's Bd. of Review, 307 AD2d 815, 815 [2003] [where a rational basis exists, administrative agency's construction and interpretation of its own regulations are entitled to deference]; Powers v City of New York, 262 AD2d 246, 246 [1999] [same]).[FN3] In turn, the BOE similarly tolled the issuance of petitioner's rating until the underlying pending investigations and letters were finalized. The September 11th and 12th Letters found that Gebran had torn up two students' test papers during class (while yelling during the latter incident) and left the school building early without notifying Principal Aranyos or obtaining her consent. Similarly, the December 12th Letter found that his absences were excessive as defined by the school attendance policy. In the court's analysis, the letters provide ample rational basis for the Chancellor's Committee to conclude that Gebran's professional performance and attendance record were unsatisfactory, and for the court to conclude that the issuance of petitioner's U-rating was not arbitrary and capricious.

Additionally, petitioner's argument that the BOE's Final Determination must be [*12]annulled because Chairperson Hinds was impartial during the BOE Hearing is unavailing. Although petitioner claims that Chairperson Hinds improperly did not allow petitioner to question Diable regarding her statement that Principal Aranyos told her to issue the U-rating, petitioner presents no evidence of any such bias or predisposition against his favor. Thus, his allegations do not provide a insufficient basis to set the determination aside (see Chadha v County of Nassau, 248 AD2d 465, 466-467 [1998]; Kelsch v Walsh, 180 AD2d 683, 684 [1992]).

Petitioner's request for actual compensatory damages are also unpersuasive and moot.

Accordingly, petitioner's application for judgment pursuant to CPLR Article 78 annulling the BOE's Final Determination is denied and the Petition is dismissed. The court has considered petitioner's remaining arguments and finds them to be without merit.

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

E N T E R,

J. S. C.


Footnote 1: Petitioner additionally requested such leave in his reply papers, which is also improper (see Gover v Savyon, 26 Misc 3d 1124[A], 2009 NY Slip Op 52746[U], *4 [2009]; Tray Wrap, Inc. v Pacific Tomato Growers, Ltd., 18 Misc 3d 1122[A], 2008 NY Slip Op 50156[U], *21 [2008]).

Footnote 2: Education Law § 3813 (2-a) further provides that,

[i]n determining whether to grant the extension, the court shall consider, in particular, whether the district or school or its attorney or its insurance carrier or other agent acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one of this section or within a reasonable time thereafter . . . [and] all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the district or school or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the district or school against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the district or school in maintaining its defense on the merits."

Footnote 3: Contrary to petitioner's contentions, although the December 12th Letter was not placed in petitioner's file until a few months after the beginning of the 2008-2009 school year, this court cannot revisit the issue of its timeliness, since that was already determined at the time the Chancellor's Committee made its Final Determination. Likewise, the court may not revisit the determinations of whether respondent's informal observations in lieu of formal reviews were sufficient; whether Diable's issuance of the amended rating was legitimate; or whether petitioner received criticism or guidance after the incidents. Such matters are best determined by the relevant agency, to whose knowledge and experience the court must defer (see Trump on Ocean, LLC v Cortes-Vasquez, 76 AD3d 1080, 1093 [2010]; City of New York v Novello, 77 AD3d 514, 515 [2010]).

No comments: