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Wednesday, June 7, 2017

To Win a Reversal of a U to an S An Educator Must Cite Violations of the UFT Contract and Show Bad Faith

The point of the First Department Appellate Division in reversing the decision to grant a change to the U-rating is that the Appellant teacher did not raise the issue of the violation of the UFT contract at the school level observation.

Betsy Combier

IN RE JEROME RAZOR, Petitioner-Respondent,


CITY OF NEW YORK, ET AL., Respondents-Appellants.

3013, 101079/13.2017 NY Slip Op 00932
Appellate Division of the Supreme Court of New York, First Department.
Decided February 7, 2017.
Order and judgment (one paper), Supreme Court, New York County (Doris Ling-Cohan, J.), entered April 9, 2015, to the extent appealed from as limited by the briefs, denying respondents' cross motion to dismiss the petition, granting the petition to the extent it annulled respondents' April 3, 2013 determination denying petitioner's appeal of his U-rating, and directing respondent Board of Education to expunge the rating and replace it with an "S" rating, unanimously reversed, on the law, without costs, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed.
Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for appellants.
Glass Krakower LLP, New York (John Hogrogian of counsel), for respondent.
Before: Tom, J.P., Renwick, Saxe, Feinman, Gesmer, JJ.
Petitioner failed to preserve the issue of whether the U-rating should have been annulled based on an alleged procedural deficiency or deviation from the collective bargaining agreement negotiated by his union regarding observation practices, since he never raised the issue at the administrative level (see e.g. Matter of Bottom v Annucci, 26 NY3d 983, 985 [2015]; Green v New York City Police Dept., 34 AD3d 262, 263 [1st Dept 2006]).
Petitioner has failed to show that the U-rating was arbitrary and capricious, or made in bad faith.
We have considered petitioner's remaining arguments and find them unavailing.

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