Opinion
No. 113652/2008.
2013-01-3
In the Matter of Glenn STORMAN, Petitioner, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent.
John C. Klotz for the petitioner. New York City Corporation Counsel for the Department of Education.
John C. Klotz for the petitioner. New York City Corporation Counsel for the Department of Education.
SHIRLEY WERNER KORNREICH, J.
Petitioner Glenn Storman moves for an order, pursuant to CPLR 5019(a), clarifying the May 11, 2009 judgment of this Court against respondent New York City Department of Education (DOE). Petitioner's application is granted for the reasons that follow. Background & Procedural History
This action has its genesis in an Article 78 commenced by Storman in 2006. Storman, a teacher at the DOE for approximately 30 years, challenged an unsatisfactory rating he received resulting from allegations of sexual misconduct and corporal punishment made in retaliation for his verbally reprimanding a student in 2004. Storman's teaching career has been seriously impacted by these false allegations. In an Order dated October 26, 2007, Justice Marcy Friedman granted the petition and remanded the case to DOE for further findings of fact. After a second hearing, in a letter dated June 10, 2008, DOE upheld Storman's unsatisfactory rating. Storman then commenced a second Article 78 proceeding challenging the result of the second hearing. In an Order dated May 11, 2009 (the Judgment), this Court granted Storman's petition because “it was irrational for the DOE to conclude that the alleged conduct amounted to corporal punishment” and “the penalty imposed was excessive and shocking to the conscience.” This Court ordered that the unsatisfactory rating be annulled and that “this matter [be] remitted to [DOE] for further proceedings not inconsistent with the court's decision.”
The purpose of remitting the case to DOE was for DOE and Storman's union, the United Federation of Teachers (UFT), to take the appropriate steps to remedy the consequences of the underlying false allegations so that Storman would be properly compensated and his employment status restored. Upon remittal, the unsatisfactory rating was annulled, but no further steps were taken to compensate Storman or to remedy his employment situation. As a result, Storman moved to hold DOE in contempt. In an Order dated November 19, 2010, this Court held DOE in contempt for its willful and contumacious failure to comply with the Judgment (the Contempt Order). However, in an Order dated May 31, 2012, the Appellate Division vacated the Contempt Order on the ground that the Judgment did not contain a “clear and unequivocal mandate.” See Storman v. NYC Dep't of Educ., 95 A.D.3d 776, 777, 945 N.Y.S.2d 281 (1st Dept 2012). Nevertheless, the Appellate Division granted Storman leave to clarify the Judgment to allow this Court to issue a clear and unequivocal mandate. The instant motion seeks such clarification. Discussion
It is well established that “a trial judge may amend a final judgment so that the judgment effectuates the intention of the court and provides relief to which a party would be entitled as a matter of course.” Security Pacific Mortg. and Real Estate Services, Inc. v. Herald Center Ltd., 731 F.Supp. 605, 607 (S.D.N.Y.1990) (citing Stannard v. Hubbell, 123 N.Y. 520, 25 N.E. 1084 (1890)). Pursuant to CPLR 5019(a), “clerical amendments may be made to a judgment when it inadvertently omits provisions clearly intended by the court.” Haven Associates v. Donro Realty Corp., 149 A.D.2d 667, 668, 540 N.Y.S.2d 478 (2d Dept 1989) (emphasis added).
At the outset, this Court notes that, contrary to DOE's contentions, the Appellate Division specifically granted Storman leave to file the instant motion. Compare Storman, 95 A.D.3d at 777, 945 N.Y.S.2d 281 (“[Storman's] remedy, if any, lies in seeking to clarify the [Judgment], which will allow the court to issue a clear and unequivocal mandate.”), with DOE Affirmation in Opposition ¶ 8 (“the First Department did not find that the [Judgment] needed any clarification,' and that if it had the Appellate Division could have remanded the [Judgment] to this Court for such clarification.”).
When this Court issued the Judgment, it recognized that the complex bureaucratic and legal issues involved with rectifying Storman's employment status pursuant to the Collective Bargaining Agreement between the UFT and the DOE (the CBA) militated in favor of remitting the matter to the DOE, which was familiar with the intricacies of the CBA and its mandates. Unfortunately, this further prolonged the matter, as DOE rested on its contention that the Judgment's mandate was not”clear and unequivocal,” a contention that was accepted by the Appellate Division in vacating the Contempt Order.
In order to finally put an end to this unfortunate saga, which began in 2004, this Court will be perfectly clear and unequivocal about what DOE must do and by when it must be done. By April 5, 2013, DOE shall do the following, pursuant to Article 21H of the CBA: (1) remove all references to the underlying false accusations from Storman's personnel file; and (2) restore back pay, with interest, that Storman did not receive on account of the underlying false accusations, including any seniority salary adjustments and lost pension benefits. If a dispute arises between the parties before such date, the parties are to promptly contact the Court, and if the parties cannot agree on the proper amount of back pay owed to Storman, Storman is granted leave to move to have such calculation referred to a Special Referee to hear and report. Finally, if DOE fails to comply with this Order in good faith, which, at a minimum, shall include an in-person meet and confer with Storman about back pay, Storman has leave to move for contempt, as DOE can no longer maintain that its mandate is not clear and unequivocal. Accordingly, it is
ORDERED that the motion by petitioner Glenn Storman to clarify the judgment of this Court against respondent New York City Department of Education dated May 11, 2009 is granted, and by April 5, 2013, said respondent shall do the following: (1) remove all references to the underlying false accusations from said petitioner's personnel file; and (2) restore back pay, with interest, that said petitioner did not receive on account of the underlying false accusations, including any seniority salary adjustments and lost pension benefits; and it is further
ORDERED that the Clerk shall enter judgment accordingly.