Opinion
2001-07903
Argued October 1, 2002.
January 13, 2003.
In a proceeding pursuant to CPLR article 75 to modify a determination of a Hearing Officer made pursuant to Education Law § 3020-a, dated May 8, 2001, which, after a hearing, dismissed 13 of 14 charges against Ronald DePace as frivolous and ordered the petitioner to pay 80% of the costs incurred by Ronald DePace and the New York State Department of Education in connection with the hearing, the petitioner appeals from a judgment of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated August 9, 2001, which, upon an order of the same court, dated July 18, 2001, dismissed the amended petition insofar as it purportedly was asserted against the New York State Department of Education, denied the amended petition insofar as asserted against Ronald DePace, and confirmed the Hearing Officer's determination. The notice of appeal from the order is deemed to be a notice of appeal from the judgment (see CPLR 5512).
Shaw Perelson, LLP, Highland, N.Y. (Mark C. Rushfield of counsel), for appellant.
Lovett Gould, White Plains, N.Y. (Jonathan Lovett of counsel), for respondent Ronald DePace.
Eliot Spitzer, Attorney-General, New York, N.Y. (Marion R. Buchbinder and Ann P. Zybert of counsel), for respondent New York State Department of Education.
Before: ANITA R. FLORIO, J.P., WILLIAM D. FRIEDMANN, THOMAS A. ADAMS, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with one bill of costs.
Initially, as the Supreme Court correctly determined, the amended petition insofar as it purportedly was asserted against the New York State Department of Education was a nullity because the petitioner failed to comply with the requirements of CPLR 401 (see Matter of Aries Striping v. Hurley, 202 A.D.2d 578; Matter of Curcio v. Kelly, 193 A.D.2d 738, 739; see also People v. Apple Health and Sports Clubs, 206 A.D.2d 266, 268; Vanderbilt Credit Corp. v. Chase Manhattan Bank, N.A., 100 A.D.2d 544, 545; cf. Matter of Aubin v. State, 282 A.D.2d 919, 920).
The Hearing Officer's determination that the petitioner should pay 80% of the costs incurred by Ronald DePace had a rational basis and was supported by the evidence in the record (see Matter of Board of Education of Great Neck Union Free School Dist. v. Brandman, 286 A.D.2d 735; Matter of Board of Education of Westhampton Beach Union Free School Dist. v. Ziparo, 275 A.D.2d 411; Matter of Fischer v. Smithtown Central School District, 262 A.D.2d 560, 561; see also Matter of Hanover Ins. Co. v. State Farm Mut. Auto. Ins. Co., 226 A.D.2d 533, 534; Matter of Adams v. Allstate Ins. Co., 210 A.D.2d 319, 320; Matter of Empire Mutual Ins. Co. v. Jones, 151 A.D.2d 754, 755).
In the light of the foregoing, we need not consider the parties' remaining contentions.
FLORIO, J.P., FRIEDMANN, ADAMS and CRANE, JJ., concur.