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Wednesday, June 29, 2016

Matter of Thomas v NYC DOE: No Private Right of Action

Matter of Thomas v New York City Dept. of Educ.
2016 NY Slip Op 02154 [137 AD3d 642]
March 24, 2016
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 27, 2016

 In the Matter of Michael P. Thomas, Appellant,
New York City Department of Education et al., Respondents.
Michael P. Thomas, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York (Jeremy W. Shweder of counsel), for respondents.
Judgment, Supreme Court, New York County (Ellen M. Coin, J.), entered September 24, 2014, denying the petition challenging respondent DOE's determination, dated September 4, 2013, which found petitioner's allegations of misappropriation of Title I funds to be unsubstantiated, and dismissing this proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
As we discussed on a prior appeal, in a related proceeding, in August 2010, petitioner, then a public school teacher, employed by the Manhattan Center for Science and Mathematics (MCSM), filed allegations with respondent DOE, complaining of, inter alia, a misappropriation of federal funds received by MCSM under Title I, Part A of the Elementary and Secondary Education Action of 1965, reauthorized as the No Child Left Behind Act (NCLB) of 2001 (20 USC § 6301 et seq.see Matter of Thomas v New York City Dept. of Educ., 103 AD3d 495 [2013]).
Petitioner, a member of MCSM's School Leadership Team (SLT), lacks standing to challenge the results of DOE's investigation of his allegations, brought pursuant to the "No Child Left Behind Written Complaint and Appeal Procedures" adopted by the New York State Education Department (see New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]; Matter of Posner v Rockefeller, 26 NY2d 970 [1970]). Petitioner's status as a complainant who initiated an administrative investigation, does not provide him with standing for a private right of action to challenge the agency's determination, absent a demonstration that he suffered actual injury (see Sassower v Commission on Jud. Conduct of State of N.Y., 289 AD2d 119 [1st Dept 2001], lv denied 99 NY2d 504 [2002]). Moreover, petitioner does not "fall within the zone of interests . . . sought to be promoted or protected" by Education Law § 2590-h or the NCLB (see Novello, 2 NY3d at 211). Concur—Tom, J.P., Friedman, Saxe and Richter, JJ.