Wednesday, August 8, 2018

If Charged With 3020-a and You Retire, Your Teaching License is Permanently Terminated


Termination is the Penalty If a Charged Employee Retires While Proceeding With 3020-a Arbitration

The point I would like to make is: if you retire after receiving 3020-a charges, you will be terminated.

See Jefferson v NYC DOE, below:
"the plain language of paragraph 24 of New York City Board of Education Chancellor’s Regulation C-205 provides that a New York City teaching license shall be permanently terminated if the license holder retires while charges are pending pursuant to Education Law § 3020-a."

Supreme Court of the State of New York Appellate Division: Second Judicial Department 
D50816 N/ct AD3d Submitted - November 3, 2016 

REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN SHERI S. ROMAN FRANCESCA E. CONNOLLY, JJ. 2015-11195 

DECISION & ORDER

In the Matter of Wayne Crawford Jefferson, appellant, v New York City Board of Education, respondent. (Index No. 6002/15)

Wayne Crawford Jefferson, Hazleton, PA, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Elizabeth I. Freedman of counsel), for respondent.

In a proceeding pursuant to CPLR article 78 to compel the respondent to reinstate the petitioner’s New York City teaching license, the petitioner appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Butler J.), entered August 3, 2015, as, in effect, denied the petition and dismissed the proceeding.

ORDERED that the order and judgment is affirmed insofar as appealed from, without costs or disbursements.

The petitioner was employed by the New York City Department of Education, sued herein as the New York City Board of Education (hereinafter the DOE), as a teacher until he retired on October 27, 2014.

At the time he retired, charges were pending against him pursuant to Education Law § 3020-a.

Pursuant to paragraph 24 of New York City Board of Education Chancellor’s Regulation C-205, the petitioner’s New York City teaching license was permanently terminated since charges were pending against him pursuant to Education Law § 3020-a at the time he retired. The petitioner was apprised of the termination of his license by an attorney from his union. The petitioner commenced this proceeding pursuant to CPLR article 78 to compel the DOE to reinstate his teaching license. The DOE moved to dismiss the petition.

The Supreme Court, in effect, denied the petition and dismissed the proceeding, and denied the motion as academic.

The petitioner appeals.

“A special proceeding under CPLR article 78 is available to challenge the actions or inaction of agencies and officers of state and local government” (Matter of Gottlieb v City of New York, 129 AD3d 724, 725; see Matter of Hollander v Suffolk County Dept. of Social Servs., Child Support Enforcement Bur., 140 AD3d 1064, 1065).

When a petitioner challenges an administrative determination that was not made after a quasi-judicial hearing, the court must consider whether the determination was made in violation of lawful procedure, affected by an error of law, or arbitrary and capricious (see CPLR 7803[3]; Matter of Gottlieb v City of New York, 129 AD3d at 725; Matter of JP & Assoc. Corp. v New York State Div. of Hous. & Community Renewal, 122 AD3d 739, 739). A determination is arbitrary and capricious when it is without sound basis and reason and generally taken without regard to the facts (see Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 231; Matter of Gottlieb v City of New York, 129 AD3d at 725).

“Pursuant to Education Law § 2590-h, the Chancellor has the authority to promulgate regulations ‘necessary or convenient’ to the administration of the public school system” (Matter of Springer v Board of Educ. of the City Sch. Dist. of the City of N.Y., 27 NY3d 102, 106). “The tenets of statutory construction apply equally to administrative rules and regulations” (id.). Such regulations should be construed in accordance with their plain language (see id. at 107; see also Matter of Vaccaro v Board of Educ. of the City Sch. Dist. of the City of N.Y., 139 AD3d 612; Matter of Brennan v City of New York, 123 AD3d 607).

Here, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding since the plain language of paragraph 24 of New York City Board of Education Chancellor’s Regulation C-205 provides that a New York City teaching license shall be permanently terminated if the license holder retires while charges are pending pursuant to Education Law § 3020-a. The petitioner’s contention that he was unaware of this regulation, which was issued on September 5, 2000, and posted online on the DOE’s website, is unavailing, as he was “deemed to be on notice of the DOE Chancellor regulation[s]” (Matter of Benjamin v New York City Dept. of Educ., 119 AD3d 440, 441; see Salamino v Board of Educ. of the City School Dist. of the City of N.Y., 85 AD3d 617, 619).

The petitioner’s remaining contentions are without merit.

Accordingly, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding.

RIVERA, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court
               January 11, 2017

129 A.D.3d 724 (2015)
10 N.Y.S.3d 542
2015 NY Slip Op 04645

In the Matter of CRAIG GOTTLIEB, Appellant,
v.
CITY OF NEW YORK, Respondents.

2014-01086
Appellate Division of the Supreme Court of New York, Second Department.
Decided June 3, 2015.
Rivera, J.P., Dickerson, Chambers and Barros, JJ., concur.

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the New York City Office of Child Support Enforcement dated November 14, 2012, denying, in effect, the petitioner's request for a recalculation of the amount of child support debt owed by him, and action to recover damages for violation of the Fair Credit Reporting Act (15 USC § 1681 et seq.), intentional infliction of emotional distress, and gross negligence, and for an injunction, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Queens County (McDonald, J.), dated October 1, 2013, which denied the petition and dismissed the proceeding, and granted the respondents' motion, inter alia, pursuant to CPLR 3211 (a) to dismiss the causes of action alleging a violation of the Fair Credit Reporting Act, intentional infliction of emotional distress, gross negligence, and for an injunction.

Ordered that the order and judgment is affirmed, with costs.

On January 23, 2009, the wife of the petitioner/plaintiff (hereinafter the petitioner) filed a petition seeking, inter alia, child support from him. On February 24, 2009, a Support Magistrate entered a temporary order of support directing the petitioner to pay child support in the sum of $100 per week to his wife through the New York State Support Collection Unit (hereinafter the SCU), commencing on February 27, 2009. In an order dated July 7, 2009 (hereinafter the July 2009 order), entered upon consent, the petitioner was directed to pay the sum of $1,215 per month in combined child and spousal support, payable through the SCU, commencing on July 30, 2009. The July 2009 order further provided that the petitioner was "additionally responsible for the support so ordered from January 23, 2009 to July 30, 2009," and directed the petitioner to pay the sum of $8,440. The SCU was directed to "[c]redit all payments made [by the petitioner] since 1/23/2009 to reduce the retro amount."

In March 2012, the petitioner admittedly withheld payment 725*725 and, in April 2012, only remitted the sum of $50.79, based on his contention that he was owed a credit by the SCU for payments made by him between February 28, 2009, and July 30, 2009. Enforcement measures were taken by the New York City Human Resources Administration Office of Child Support Enforcement (hereinafter OCSE), including the issuance of restraining notices to two different financial institutions holding the petitioner's bank accounts. On October 9, 2012, the petitioner submitted a "Mistake of Fact" form to the SCU, claiming that his account was not in arrears and, instead, that he was "due a credit of $18.08." On November 14, 2012, the OCSE denied the petitioner's claim that the SCU "has made an error in the amount of child support debt that is owed," and determined that "there is an amount past-due and owing."

The petitioner commenced this hybrid proceeding pursuant to CPLR article 78 to review the determination dated November 14, 2012, and action to recover damages for a violation of the Fair Credit Reporting Act (15 USC § 1681 et seq.), intentional infliction of emotional distress, and gross negligence, and to permanently enjoin the respondents/defendants (hereinafter the respondents) from reporting any derogatory information related to his support collection account to credit reporting agencies, and directing the respondents to take steps necessary to remove any derogatory information from his credit file at the credit reporting agencies. The respondents moved, inter alia, pursuant to CPLR 3211 (a) to dismiss the petition/action.

A special proceeding under CPLR article 78 is available to challenge the actions or inaction of agencies and officers of state and local government (see Matter of Luczaj v Bortnik, 91 AD3d 872, 873 [2012]). The standard of judicial review in the instant matter is whether the administrative determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see CPLR 7803 [3]; Matter of JP & Assoc. Corp. v New York State Div. of Hous. & Community Renewal, 122 AD3d 739, 739 [2014]). An arbitrary determination is one that is without a sound basis in reason, and is made without regard to the facts (see Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280 [2010]Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]).

Here, the determination of the OCSE to deny the petitioner's claim that the SCU erred in calculating the amount of past-due support owed by him has a rational basis in the record, 726*726 and was, thus, not arbitrary and capricious. The payment history for the petitioner's support collection account established that, at the time the petitioner submitted the "Mistake of Fact" form, his account was in arrears. Moreover, the payment history flatly contradicted the petitioner's claim that the payments made by him from February 2009 until July 2009 were not credited to his account (see Matter of Kirkpatrick v Wambua, 117 AD3d 739, 740 [2014]Ford v Department of Social Servs., 41 Misc 3d 1237[A], 2013 NY Slip Op 52045[U], *7-8 [Sup Ct, NY County 2013]; Ward v NYC Human Resources Admin., 2011 NY Slip Op 33162[U] [Sup Ct, NY County 2011]; Matter of Ovalles v New York City Human Resources Admin., 2008 NY Slip Op 33635[U], *2-4 [Sup Ct, NY County 2008]). Further, contrary to the petitioner's contention, the OCSE was authorized, upon determining that his account was in arrears, to attach and seize his assets for the purpose of collecting the overdue support obligation (see Social Services Law § 111-t; 18 NYCRR 346.11), and offset any refund of income tax by the amount of overdue support owed by him (see 42 USC § 666 [a] [3] [A]; Social Services Law § 111-b [7], [8]; 18 NYCRR 346.9). Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.

The Supreme Court also properly granted the respondents' motion, inter alia, pursuant to CPLR 3211 (a) to dismiss the causes of action alleging violations of the Fair Credit Reporting Act, intentional infliction of emotional distress, gross negligence, and for an injunction. On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (7), all of the allegations in the pleading are deemed true and the petitioner is afforded the benefit of every favorable inference (see Matter of Kar-McVeigh, LLC v Zoning Bd. of Appeals of Town of Riverhead, 93 AD3d 799, 800 [2012]). Although the facts pleaded are presumed to be true, "bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration" (Riback v Margulis, 43 AD3d 1023, 1023 [2007]).

The substance of the cause of action alleging a violation of the Fair Credit Reporting Act was, in essence, a challenge to the determination by the OCSE that the petitioner's account was in arrears, which authorized the OCSE, pursuant to Social Services Law §§ 111-b, 111-c and 111-t, to take enforcement action and report his arrears to the credit reporting agencies. This cause of action essentially constituted a request for relief pursuant to CPLR article 78, regardless of the form in which it was pleaded and, thus, was properly dismissed (see Hertzel v Town of Putnam Val., 121 AD3d 641, 643-644 [2014]Kickertz v New York Univ., 110 AD3d 268, 272 [2013]).

727*727 "[P]ublic policy bars claims sounding in intentional infliction of emotional distress against a governmental entity" (Lauer v City of New York, 240 AD2d 543, 544 [1997]see Dillon v City of New York, 261 AD2d 34, 41 [1999]). Here, the individual respondents were only sued in their official capacities. Therefore, the petitioner could not and did not state a cause of action against them for intentional infliction of emotional distress. Accordingly, that branch of the respondents' motion which was to dismiss this cause of action was properly granted.

Finally, the Supreme Court properly granted those branches of the respondents' motion which were to dismiss causes of action alleging gross negligence and for injunctive relief. Even if the allegations contained in the petition are assumed to be true, they do not state a cause of action to recover damages for gross negligence or supporting the issuance of a permanent injunction (see Vilella v AT&T, 35 Misc 3d 1224[A], 2012 NY Slip Op 50853[U], *10 [Sup Ct, NY County 2012]; Josey v Sallie Mae, Inc., 2009 WL 2518643, *8, 2009 US Dist LEXIS 72157, *24-25 [SD NY, Aug. 17, 2009, No. 09 Civ. 4403 (SHS) (AJP)]).
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