Opinion
Index No. 651121/2023 Motion Seq. Nos. 001 002 NYSCEF Doc. No. 26
01-04-2024
JOSEPH CREA Plaintiff, v. THE NEW YORK CITY BOARD/DEPARTMENT OF EDUCATION, Defendant.
Unpublished Opinion
MOTION DATE 05/30/2023, 06/16/2023
DECISION + ORDER ON MOTION
SABRINA KRAUS, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 7 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,22, 23, 24 were read on this motion to/for DISMISSAL.
BACKGROUND
Petitioner brings this proceeding seeking to challenge his termination as a teacher for inappropriate conduct towards female students and failing to take appropriate action when one of his students was injured.
Respondent cross-moves for dismissal of the petition based on a failure to state a cause op action.
For the reasons stated below, the petition is denied and the cross-motion to dismiss is granted.
DISCUSSION
CPLR § 7511(b)(1) sets forth the following four grounds upon which the Court can vacate or modify an arbitration award: (i) corruption, fraud or misconduct in procuring the award; or (ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or (iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or (iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection. These four grounds are the exclusive bases for vacating an arbitration award. Blamowski v. Munson Transp., 91 N.Y.2d 190, 194 (1997).
None of these grounds is sufficiently alleged in the petition.
It is well-settled that an arbitrator's award will not be vacated because of errors of law or fact. Silverman v. Benmore Coats, 61 N.Y.2d 299 (1984); see Sprinzen v. Nomberg, 46 N.Y.2d 623, 629 (1979)
Petitioner argues that the Arbitrator made the wrong decision, credited the testimony of the wrong witnesses and alleges bias by the Arbitrator.
The court does not find the claim of bias to be supported by the record. The court notes for example the Arbitrator did not sustain all of the charges which were brought.
As to credibility, arbitrators assigned as Hearing Officers pursuant to Education Law §3020-a are afforded broad discretion in determining witness credibility. See Rodriguez-Rivera v. Kelly, 2 N.Y.3d 776 (2004). Where conflicts appear in the testimony, it is province of the hearing officer, and not the courts, to determine which version of the matter should be credited and which should be rejected. See Stork Restaurant v. Boland, 282 N.Y. 256, 267 (1940).
Moreover, "a hearing officer's determinations of credibility ... are largely unreviewable because the hearing officer observed the witnesses and was 'able to perceive the inflections, the pauses, the glances and gestures-all the nuances of speech and manner that combine to perform an impression of either candor or deception.'" Lackow v. Dep't of Educ. (or "Board") of City of New York, 51 A.D.3d 563, 568 (2008) (quoting Berenhaus v. Ward, 70 N.Y.2d 436, 443 (1987)).
Indeed, Petitioner's arguments in this regard have themselves a misogynist tone. The petition repeatedly refers to the female students who complained about Petitioner as a "Girl-Mob" and implies that they are implicitly not to be believed. Petitioner then highlights the testimony of a teacher who testified on his behalf, David Aronson. Mr. Aronson also a physical education teacher testified" ... that girls make this kind of accusation all the time, and they do not fool anyone."
Petitioner further argues there was not a proper determination of probable cause because a vote did not occur in an Executive Session by the Panel for Educational Policy ("PEP"). However, Petitioner was availed of the procedures afforded to teachers under New York Education Law 3020 and was afforded due process. "[T]here is no longer a requirement to have a majority vote of the board of education due to the later-enacted Education Law § 2590 that vested authority in the Chancellor in place of the board of education to delegate said authority to superintendents and others he or she deems appropriate." Giscombe v. New York City Dep't of Ed., 2014 N.Y. Misc. LEXIS 2674, at *10 (Sup. Ct. N.Y. Co. 2014); see also Munoz v. Vega, 303 A.D.2d253 (2003).
The DOE Chancellor has the statutory authority to exercise the same powers as the Board, including the power to make a probable cause determination against a tenured teacher, and then to delegate that power to the superintendents and to the principals. See Education Law §§ 2590-h(19), 2590-h(38), 2590-f(1)(b).
Nor does the court find that the penalty herein is disproportionate to the offenses which the Arbitrator found to be sustained. The standard for reviewing 3020-a hearing's penalty is whether the "punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Asch v. N.Y.C. Dep't of Educ., 104 A.D.3d 415, 421 (1st Dep't 2013). A result is shocking to one's sense of fairness if "the sanction imposed is so grave in its impact.. .that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution." Pell v. Bd. Of Educ., 34 N.Y.2d 222, 234 (1974). A reviewing court does not have the authority to reweigh the evidence and substitute its judgment for that of the hearing officer; so long as the penalty imposed is not irrational, it must be upheld. See Bolt v. N.Y. City Dep't of Educ., 30 N.Y.3d 1065, 1068 (2018).
Where a school has notice of improper conduct by a teacher towards students, particularly of a sexually suggestive nature, the school risks liability if no action is taken. The DOE has a strong public policy interest in ensuring that the students entrusted to its care are not exposed to teachers who will subject them to inappropriate sexual misconduct. See In re Marino S., 100 N.Y.2d 361, 369 (2003). A teacher's sexual misconduct and sexual harassment establishes a rational basis for termination that does not shock the conscience. Gongora v. N.Y. City Dep't of Educ., 98 A.D.3d 888 (1st Dep't 2012); see also Villada v. City of New York, 126 A.D.3d 598 (1st Dep't 2015).
Finally, Petitioner's claims that the Arbitrator was late in issuing his decision does not warrant a different result. Petitioner must demonstrate that he has suffered undue prejudice as a result of the alleged delay. Matter of Morrell v. New York City Dept. of Educ., 924 N.Y.S.2d 310, at *12 (Sup. Ct. N.Y. 2010). Furthermore, "a party waives the objection that an award was not made within [30 days] unless he notifies the arbitrator in writing of his objection prior to the delivery of the award." CPLR § 7507. Petitioner does not allege that he has suffered prejudice, nor that he notified the arbitrator of the untimeliness. Petitioner, therefore, fails to show that the award should be vacated on this ground.
WHEREFORE it is hereby:
ADJUDGED that the petition for relief pursuant to Article 75 is denied and the proceeding is dismissed; and it is further
ORDERED that, within 20 days from entry of this order, respondent shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further
ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nvcourts.gov/supctmanh);]; and it is further
This constitutes the decision and order of this court.