Opinion
3413N, 100128/15.
03-15-2017
In re Veronica TELEMAQUE, Petitioner–Appellant, v. NEW YORK CITY BOARD/Department of Education, Respondent–Respondent.
Veronica Telemaque, appellant pro se. Zachary W. Carter, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for respondent.
Veronica Telemaque, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for respondent.
SWEENY, J.P., RENWICK, MAZZARELLI, MANZANET–DANIELS, JJ.
Order and judgment (one paper), Supreme Court, New York County (Shlomo Hagler, J.), entered on or about October 13, 2015, denying petitioner's motion to vacate an arbitration award, dated January 16, 2015, which terminated petitioner's employment with respondent based upon findings of misconduct, and dismissing the proceeding brought pursuant to CPLR article 75, unanimously modified, on the law, to confirm the arbitration award, and otherwise affirmed, without costs. The Clerk is directed to enter judgment confirming the award (CPLR 7514[a] ).
The hearing officer's determination was rational and not arbitrary and capricious (see City School Dist. of the City of N.Y. v. McGraham, 75 A.D.3d 445, 450, 905 N.Y.S.2d 86 [1st Dept.2010], affd. 17 N.Y.3d 917, 934 N.Y.S.2d 768, 958 N.E.2d 897 [2011] ), given his credibility findings, which are largely unreviewable (see Matter of Asch v. New York City Bd./Dept. of Educ., 104 A.D.3d 415, 420, 960 N.Y.S.2d 106 [1st Dept.2013] ). The motion court properly concluded that petitioner failed to demonstrate by clear and convincing evidence that the hearing officer was biased against her (see Matter of Moran v. New York City Tr. Auth., 45 A.D.3d 484, 484, 846 N.Y.S.2d 162 [1st Dept.2007] ). Petitioner voluntarily signed a release for her medical records, and the hearing officer's reference to those records did not show prejudice.
The record reflects that petitioner was accorded due process. She waived her assertion that the principal was not authorized to prefer charges against her, since she failed to raise that argument in the arbitration proceeding (see Matter of Stergiou v. New York City Dept. of Educ., 106 A.D.3d 511, 512, 965 N.Y.S.2d 106 [1st Dept.2013] ).
The penalty imposed is not disproportionate to the offense, given petitioner's lack of remorse or appreciation of the seriousness of her threats of violence (see Matter of Villada v. City of New York, 126 A.D.3d 598, 599, 6 N.Y.S.3d 52 [1st Dept.2015] ).
We modify solely to confirm the arbitration award (see CPLR 7511[e] ).