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Friday, October 9, 2015

Appellate Division Affirms the Termination of Teacher Damian Estaban

The decision to go back to the termination decision at 3020-a rather than affirm the vacating of the termination by Judge Mendez in the New York State Supreme Court is a huge error in our opinion.

I believe it to be very scary when the Courts decide not to rehabilitate, and that once a mistake, always a mistake.

This is a mistake.

Damian Estaban

Matter of Esteban v Department of Educ. of the City School Dist. of the City of N.Y.
2015 NY Slip Op 06965
Decided on September 29, 2015
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 29, 2015 
Friedman, J.P., Andrias, Saxe, Gische, Kapnick, JJ.

15711 651904/13 

[*1] In re Damian Esteban, Petitioner-Respondent, 


The Department of Education of the City School District of the City of New York, Respondent-Appellant.

Zachary W. Carter, Corporation Counsel, New York (Deborah A. Brenner of counsel), for appellant.
Eisner & Associates, P.C., New York (Benjamin N. Dictor of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Manuel J. Mendez, J.), entered September 20, 2013, granting the petition to vacate the portion of the arbitrator's determination that imposed the penalty of termination of petitioner's employment as a public school teacher, and remanding for imposition of an appropriate lesser penalty, unanimously reversed, on the law, without costs, the petition denied, and the proceeding dismissed.
Petitioner, a school teacher employed by respondent Department of Education (DOE), entered a courthouse in possession of a quantity of heroin, which led to his arrest and widespread negative publicity. DOE brought disciplinary charges against petitioner, which were submitted for determination to an arbitrator pursuant to Education Law § 3020-a. The arbitrator sustained certain of the specifications and determined that the appropriate penalty for petitioner's misconduct was dismissal. Supreme Court granted the petition to vacate the arbitrator's penalty determination. Upon DOE's appeal, we reverse.
An arbitration award determining an employment dispute in public education may not be vacated unless "it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 79 [2003], quotingMatter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33, 37 [1991]). Here, it cannot be said that it was irrational, against public policy, or ultra vires for the arbitrator to determine that petitioner's public possession of heroin warranted the penalty of dismissal. Nor is the termination of employment as a penalty for such misconduct "so disproportionate to the offense[] as to be shocking to the court's sense of fairness" (Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 569 [1st Dept 2008]). Petitioner's reliance on City School Dist. of City of
N.Y. v Lorber (50 AD3d 301 [1st Dept 2008]) is unavailing, as the order we affirmed in that case confirmed the arbitrator's penalty determination.

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