Opinion
2012-05-31
In re Glenn STORMAN, Petitioner–Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent–Respondent. In re Glenn Storman, Petitioner–Respondent, v. New York City Department of Education, Respondent–Appellant.
John C. Klotz, New York, for Glenn Storman, appellant/respondent. Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for New York City Department of Education, respondent/appellant.
John C. Klotz, New York, for Glenn Storman, appellant/respondent. Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for New York City Department of Education, respondent/appellant.
, J.P., CATTERSON, DeGRASSE, RICHTER, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered November 29, 2010, which, among other things, granted petitioner's motion to hold respondent Department of Education (DOE) in contempt for its alleged failure to comply with a judgment, same court and Justice, entered May 19, 2009 (May judgment), unanimously reversed, on the law, without costs, and the motion denied. Judgment, Supreme Court, New York County (Alexander W. Hunter, Jr., J.), entered September 9, 2011, denying the petition to annul a determination of respondent DOE, dated October 29, 2010, which sustained petitioner's unsatisfactory rating for the 2007–2008 school year, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
In the interest of justice, we nostra sponte grant DOE leave to appeal from the contempt order of May 19, 2009, which was “made in a proceeding against a body or officer pursuant to article 78” and therefore was not appealable as of right (CPLR 5701[b][1]; see Matter of Whitfield v. Bailey, 91 A.D.3d 491, 492, 939 N.Y.S.2d 2 [2012] ).
Supreme Court's direction in the May judgment to remand for “further proceedings” was not a “clear and unequivocal” mandate, and thus DOE should not have been held in contempt for allegedly disobeying it ( Hae Mook Chung v. Maxam Props., LLC, 52 A.D.3d 423, 423, 859 N.Y.S.2d 369 [2008];see also Richards v. Estate of Kaskel, 169 A.D.2d 111, 122, 570 N.Y.S.2d 509 [1991],lv. dismissed in part, denied in part, 78 N.Y.2d 1042, 576 N.Y.S.2d 210, 582 N.E.2d 593 [1991] ). Petitoner's remedy, if any, lies in seeking to clarify the May 19, 2009 order, which will allow the court to issue a clear and unequivocal mandate.
Petitioners's February 24, 2011 CPLR article 78 fares no better. Petitioner claims that his challenge to his unsatisfactory rating should have been transferred to this Court and reviewed under the “substantial evidence” standard. This is error as it “should not have been transferred because it did not seek review of a determination made ‘as a result of a hearing held ... pursuant to direction by law’ ” ( Batyreva v. New York City Dept. of Educ., 50 A.D.3d 283, 283, 854 N.Y.S.2d 390 [2008], quoting CPLR 7803[4] ). Additionally, the administrative hearing conducted by the Chancellor's Committee “was not determinative but merely advisory” to the Chancellor (Matter of Bigler v. Cornell Univ., 266 A.D.2d 92, 93, 698 N.Y.S.2d 472 [1999],lv. dismissed95 N.Y.2d 777, 710 N.Y.S.2d 837, 732 N.E.2d 944 [2000] ). Accordingly, the “arbitrary and capricious” standard of judicial review applies, not the “substantial evidence” standard ( see Matter of Kaufman v. Anker, 42 N.Y.2d 835, 836–837, 397 N.Y.S.2d 376, 366 N.E.2d 77 [1977] ).
Applying the proper standard, DOE's determination was not arbitrary and capricious, but was rationally based in the record, which included the investigator's report and the testimony of the investigator and principal at the administrative hearing ( see Matter of Murnane v. Department of Educ. of the City of N.Y., 82 A.D.3d 576, 576, 919 N.Y.S.2d 24 [2011];Batyreva v. New York City Dept. of Educ., 50 A.D.3d 283, 283, 854 N.Y.S.2d 390 [2008] ).
Petitioner's “stigma plus” due process claim is defeated by the availability of administrative review, as well as CPLR article 78 review ( see Kahn v. New York City Dept. of Educ., 79 A.D.3d 521, 523, 915 N.Y.S.2d 26 [2010],affd. 18 N.Y.3d 457, 940 N.Y.S.2d 540, 963 N.E.2d 1241 [2012];Pinder v. City of New York, 49 A.D.3d 280, 281, 853 N.Y.S.2d 312 [2008] ).