Opinion
9657 Index 101569/14
06-18-2019
In re Marie ADDOO, Petitioner-Appellant, v. NYC BOARD OF EDUCATION, Respondent–Respondent.
Marie Addoo, appellant pro se. Zachary W. Carter, Corporation Counsel, New York (Barbara Graves–Poller of counsel), for respondent.
Marie Addoo, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York (Barbara Graves–Poller of counsel), for respondent.
Gische, J.P., Webber, Kahn, Kern, JJ.
Judgment, Supreme Court, New York County (Shlomo Hagler, J.), entered December 22, 2015, denying the petition, inter alia, to annul respondent's determination, dated November 5, 2014, which upheld petitioner's "Unsatisfactory" annual performance review rating for the 2013–2014 school year, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Contrary to petitioner's argument, there was no discontinuance of employment (see e.g. People v. Grasso, 54 A.D.3d 180, 211, 861 N.Y.S.2d 627 [1st Dept. 2008] ). Petitioner voluntarily resigned. Petitioner failed to show that the U-rating was arbitrary and capricious or made in bad faith (see Matter of Murname v. Department of Educ. of the City of N.Y., 82 A.D.3d 576, 919 N.Y.S.2d 24 [1st Dept. 2011] ). Respondent's determination to uphold the U-rating has a rational basis in the record, which shows repeated instances of pedagogical deficiencies during the 2013–2014 school year, as well as a failure to improve.
To the extent petitioner challenges her pension calculation, respondent is not the proper party against which to bring her claims (see e.g. Rowell v. Teachers' Retirement Bd. of Teachers' Retirement Sys. of City of N.Y., 123 A.D.2d 558, 507 N.Y.S.2d 2 [1st Dept. 1986], lv denied 69 N.Y.2d 604, 513 N.Y.S.2d 1025, 505 N.E.2d 626 [1987] ). These claims could not in any event be entertained, because petitioner failed to exhaust her administrative remedies (see Feher v. John Hay Coll. of Criminal Justice, 37 A.D.3d 307, 830 N.Y.S.2d 120 [1st Dept. 2007], lv dismissed in part, denied in part 9 N.Y.3d 885, 842 N.Y.S.2d 764, 874 N.E.2d 729 [2007], cert denied 552 U.S. 1187, 128 S.Ct. 1309, 170 L.Ed.2d 72 [2008] ).
We have considered petitioner's remaining arguments and find them either unpreserved or otherwise unavailing.