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Saturday, December 14, 2013

New York State Trial Lawyers' Association on Auqui v Seven Thirty One Limited Partnership, et al.

Thanks to the efforts and support of a remarkable coalition of lawyers, labor and community groups, the Court of Appeals today  [Dec. 10, 2013] reversed its ruling in Auqui v. Seven Thirty One Limited Partnership, et al. It was a wise decision.  If the Court's original ruling had been allowed to stand, injured workers would have been unjustly denied the opportunity to seek justice in the courts while receiving Workers Compensation benefits.  
As many of you know, in the Auqui case the Court of Appeals had, for the first time, granted collateral estoppel effect to decisions of the workers’ compensation board in third-party actions regarding disability issues. The decision jeopardized the right to jury trial on those issues and would have a serious impact on the ability of injured workers to seek justice through the court system, while also undermining the workers’ compensation system.
Today’s unanimous ruling vacated the earlier decision, and held that a decision of the workers’ compensation board as to duration of disability could not be granted preclusive effect, holding that:
Given the realities of these distinct proceedings, the finder of fact in a third-party negligence action, in its attempt to ascertain the extent of plaintiff's total damages, should not be bound by the narrow findings of the Board regarding the duration of plaintiff's injury or his need for further medical care.
This critical decision will ensure that injured workers will continue to be able to hold responsible third-parties accountable and to have their day in court. A copy of the full decision is available here.
Special thanks for their commitment and foresight in fighting to obtain a rarely granted re-argument must go to Immediate Past President Michael Jaffe as well as appellate counsel for the plaintiff and Amicus Committee Chair Annette Hasapidis.
In addition, an unprecedented coalition of lawyers, labor and community organizations worked tirelessly over many months to achieve this remarkable victory.  For their tremendous dedication and efforts to ensure that workers’ rights are protected, we would particularly like to thank:
  • NYSTLA’s Amicus Committee;
  • New York State Bar Association;
  • AFL-CIO;
  • New York City Central Labor Council; 
  • Building and Construction Trades of Greater New York;
  • Injured Workers Bar Association;
  • Workers Injury Law and Policy Group;
  • New York Committee for Occupational Safety and Health;
  • Make the Road New York;
  • New York Communities for Change;
  • Center for Popular Democracy;
  • The Black Institute; and
  • Citizen Action of New York.

Why the Case of Francesco Portelos is Important to NYC Teachers

Friday the 13th – Exactly Two Years Since I First Raised Issues at SLT

It was December 13, 2011. A group of adults had pushed several student’s desks together and sat around them in room 129 of Berta Dreyfus Intermediate School 49. The group was comprised of teachers and parents and they were there for only two reasons – 1) To set the goals of the school by writing the Comprehensive Education Plan (CEP) 2) To align the goals with the school’s budget. According to Chancellor’s Regs A-655, that was it. They were paid to meet after school, on a monthly basis, and do that job.
The problem was…they weren’t. It was December and since September, there were no discussions or review of the CEP or $7.7 million budget. So at one point, after SLT Chairperson Susanne Abramowitz finished her agenda items, I interject and raise my right hand, like a student, while my left was still on the iPad where I was typing the minutes below. “Hey, are we going to go over the CEP or the budget at all?” I asked. What happened next was a bit unexpected to me, the newcomer on the team. The parents, UFT Chapter Leader Richard Candia and parent coordinator, all people who have been on the team for awhile, started voicing their opinions as well. It was almost as if there was a balloon that was inflating and inflating for some time, and I just popped it. “Yeah, why aren’t we looking at that? Shouldn’t it be out on the table at every meeting?” A parent to my left asked. A teacher on the team started discussing the budget and saying I think it’s online. I searched and found it and placed it in the meeting minutes below.
Excerpt of Dece. 13, 2011 SLT Minutes
December 13, 2011
I. Welcome and Sign in
II. Reading November minutes
III. Old Business -
Meeting dates for 2012
January 10
February 7
March 13
April 3
May 8
June – time and place TBA
Senior Rings
Senior Pictures and 6th & 7th grade pictures
Quality Review- December 13-14
Toy drive – continues through 12/16
IV. New Business
CEP – SLT members feel that we speak about calendar events more than we do about the CEP. Our sole goal is to discuss the CEP as per chancellor regulations.
Members feel that we not only need to but have to take a more active role in the budget as well.
You can kind of see where I was hearing about Toy Drives, Senior Pictures, Senior Rings and then had enough and raised this concern. It’s basically stated right there in the minutes in order.
There was one person that was a unusually quiet. That was SLT Chairperson Susanne Abramowitz. She was hearing what was going on and knew this was on her. She is the chairperson after all and has the job of writing the agenda and running the meetings. “Well, we can ask Ms. Hill about it.” she throws in to the discussion.
Principal Hill was across the hall in her office. She was with the State Quality Review person that just evaluated the school earlier that day. Almost on Que, Principal Hill walks in a few minutes later. It was our holiday meeting and some of us had gotten up to grab some empanadas a parent brought in.
I remember I was by the window eating and facing the tables. Principal Hill was looking down at her food, eating, when Susanne Abramowitz nervously stated “We were discussing the CEP and budget and–” “CEP?” Principal Hill interjected, still chewing, and not looking up. She waves one hand and says “That was due December 1st. I already submitted it.
Well at that point you could cut the tension with a knife in there. I remember scanning the room and seeing the popped balloon, now deflated. I remember parent Jensen rolling her eyes. PTA President Peterkin also gave a look of disappointment. There was a general feeling of “We were close. We were close in doing the right thing.” The final kick came from SLT Chairperson Abramowitz who quickly, and with a sigh of relief, said “Oh ok…we’ll just work on next year’s now.
I don’t think so. I had a 6 month old son, zoned for IS 49, living 1.5 miles away. I didn’t join the SLT and recently become UFT Delegate just for the title. I set out to make my community better for the students and my own son. I too shook my head and went to sit down and continued typing minutes. However, I open up the iPad’s browser and started searching for SLT and CEP. I came across James Calantjis’ website
So I don’t repeat two years worth of unbelievable saga and retaliation,  you can read what happened next here:
However, you should be interested to hear this that I have not share yet. As I continued to question the issue of the CEP and the violation to not only the chancellor’s regs, but NYS Ed Law 2590-h as well, the principal, SLT chairperson, and even former Superintendent Erminia Claudio stated “Oh …that CEP submitted on December 1st was just a draft. The SLT continued to work on it for the next few months. They signed and submitted it in April 2012.” That was the story they tried to play out to cover themselves. They continue with that false narrative to this very day.
It’s partially true. We did continue to work on it. If you read January, February and March’s SLT meeting minutes, there is discussion about editing and adding goals. However, that was just a waste of the parent’s time and to appease any one who questioned it. Susanne Abramowitz and Principal Hill literally had us sit for hours discussing items that were never, ever, going to be added. The reason they weren’t going to be added? The final copy, written by Principal Hill and the Children First Network was submitted on December 1, 2011.
Don’t take my word for it. See here:
1. Go to the official NYC DOE website for IS 49.
2. Click on Statistics and Budget on the left side bar
4. Download it by clicking it and clicking save or just right clicking and clicking save.
5. Open it. Search for the key terms we allegedly wanted added during the February 7, 2012 meeting
CEP Review- We will add to the CEP the new programs at Dreyfus. They include:
49 Strong, Kids Connect, Love the Skin U R In (St. John’s students), Transitional
Coaches, Children’s Aid Society, and the Jewish Board (a bilingual program).
I’ll save you some time. Those programs are not in there. Why? Maybe because the final version was submitted on…December 1, 2011.
Wait… there is more!
Since you have the file open. Click File and then Properties. Look at the date this official document was created and last modified. I’ll save you some time…
Official 2011-2012 CEP
Official 2011-2012 CEP
Pretty interesting, right? For months we were given the impression that we were working on something and it was nothing, but a waste of time and cover up. Dirty and corrupt cover up.
Perhaps that is the reason they kept trying to shut me up when I wanted to add a fourth goal to the CEP. Can’t add anything. It’s already been submitted. They didn’t say that though. Instead Principal Hill barked at me “WHAT’S YOUR POINT MR. PORTELOS?”
Wait…there is more!
It actually gets worse…if you can believe that.  Each CEP has a signature page and every member from the SLT has to sign to show they were involved. State Law. Sometime in late December 2011 or early January of 2012, I was on line to sign out and leave school at dismissal. I was next to another teacher and SLT member. Principal Hill stops us and asks “Can you two please sign this?” It looked like the signature page (page 2 of CEP). “What is it?” I asked skeptically. I noticed UFT Chapter Leader Richard Candia and Susanne Abramowitz already signed it.  ”It’s just a form to say we discussed something about a computer program.” she responded. Back then I trusted the two and we both signed as well and that was that.
But where is the official signature page? I never signed one. I even FOILed it and simply requested just that page that is supposed to be readily available at the principal’s office. The response from the principal’s attorney, Marisol Vazquez esq., was “A diligent search has been conducted for the records you seek. I have been informed that no records have been located. As such, our response to your FOIL request is concluded.”
I appealed that FOIL response to DOE’s General Counsel Courtenaye Jackson-Chase and her response was basically “We can’t provide what can’t be found.
But Mr. Portelos, did you reach out to the CEC, FACE or NYS to get assistance?” Yes. It’s exactly two years later. Nothing from CEC President Sam Pirozollo. Nothing from our SLT liason Mike Riley. Nothing from FACE Director Jesse Mojica. Nothing from FACE’s Cluster 2 liaison Pedro Rivera. Who I would like to add sent this email out after I asked for help again.
From: Rivera Pedro
Sent: Monday, January 14, 2013 04:56 PM
To: Mckeon Jean CFN 211
Subject: PS 49 SLT
Heads up!
The SLT members of PS 49 (the UFT) will be expecting to see the SLT view of their budget at tomorrow’s meeting.
Can you please remind the school to use this at tomorrow’s meeting. FYI Portelos has been talking again.
Pedro A. Rivera
Division of Family & Community Engagement
Family Engagement Initiatives Director, Cluster 2
Parents & Families
212-374-6854 /718 281-3255
BB 917-603-0865
49-51 Chambers Street, Suite 503
Manhattan, NY 10007
“Schools would have to spend $1,000 more per pupil
to reap the same gains that an involved parent brings”
Is this issue duplicated countless times across the DOE’s 1,800 schools? Yes. Just ask any SLT member. I’ll leave you with that to think about.
I actually have to get ready for my termination hearing now. Today, Friday the 13th is my 13th day of hearings before an arbitrator. She will decide my fate, to an extent, in the upcoming months. My first three witnesses are set to come in today, with several more in the upcoming weeks. It’s open and public. Stop by if you can to see this saga unfold. My hearings alone have cost the taxpayer over $30,000 and that is just since September.
Mr. Portelos, knowing what you know now, would you still ask that same question if you could go back in time?