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Matter of Gregg v Department of Education of City of New York 2006 NY Slip Op 30424(U) October 10, 2006 Supreme Court, New York County Docket Number: 100893/2006 Judge: Paul G. Feinman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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Index Number : 100893/2006 GREGG, LINDA
vs

INDEX NO.

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DEPARTMENT OF EDUCATION
Sequence Number : 002

MOTION DATE

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MOTION SEa. NO.

DlSM ACTlON/INCONVENlENT FORUM
MOTION CAL. NO.

T h e following papers, numbered 1 to

were read on this motion totfor

Notice of Motion/ Order t o S h o w Cause - Affidavits - Exhibits Answering Affidavits - Exhibits Replying Affidavits

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PAPERS NUMBERED

Cross-Motion:

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Upon t h e foregoing papers, it i ordered that this motion s

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DISPOSITION
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NON-FINAL DISPOSITION

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REFERENCE

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL TERM: PART 52

Index Number Mot. Submit Date Mot. Seq. Nos. Cal. Nos. THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, Defcndaiit.

100893/2006 July 26, 2006 002 & 003 8&9

DECISION & ORDER

For the Plaintiff: Linda Grcgg, pro SL' 38-40 57'h Avenue, Apt. l6M Corona NY I 1368-365 I 7 18-592-0037

For tlic Defendant: Michael A. Cardozo, Esq. Corporation Counsel for City of New York By: Robert Katz, Esq. 100 Church Street, Rrn 2-108 Ncw York N Y I0007 212-768-0880

Papcrs considered in rcview of these motions to dismiss and for sumnary judgnicnt:

Seq. 002

Papers Numbered Notice of Motion, Affidavits, Memo of Law ..... 123 .. Answering Affiduvits ......................................... 4 Replying Affidavits ............................................ 5 Reply Memorandum ..........................................

-

Scq. 003

Notice of Motion und Affidavits Annexed ..........1 Affirmation in Opposition ................................... 2 Reply and Affidavit Evidcncc ............................. 3
- .

PAUL GEORGE FEINMAN, J.:
The motions bearing sequence numbers 002 and 003 are coiisolidated for purposes of a

joint decision.
Plaintiff, a licensed and tenured New York State Certified teacher, brings this action to

restore her to her teaching position, recover back pay, address due process and equal protection violations, and rccover damages for defamation. Plaintiff seeks $500,000 dollars in damages. In the first motion, bearing sequence number 002, The Department of Education of the City oiNew 1

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York moves to dismiss the complaint in its entirety based on lack of subject matter jurisdiction, res judicata and collateral estoppel, failure to state a cause of action, and statute of limitations (CPLR 321 l[a][2],[5],[7], 217; N.Y. Educ. L. 5 3813[1]; N.Y. Gen. Mun. L. 5 50-e[2]). In thc second motion, bcaring sequence number 003, plaintiff moves for a default judgment and for summaryjudgment (CPLR 3215; 3212). At oral argument on June 28' 2006, the court converted defendant's motion from a motion to dismiss into a motion to summary judgment pursuant to CPLR 3212 ( c). The motions were adjourned to July 26,2006 and the parties were granted leave to submit supplemental papers.'

For the reasons stated hercin, defendant's motion is grantcd in its entirety; plaintiffs
motion is denied as academic, and the action is dismissed.

Factual and Procedural Background
After a hearing conducted by a hearing olficer of the State Education Department over the course of several days in Junc 2004, plaintiff was found guilty in a dccision dated October 20,

2004, of six specifications involving insubordination and neglect of duty, and not guilty oftwo
other specifications (Def. Not. of Mot. Ex. C [Findings & Penalty of Statc of N.Y. State Educ. Dept.]). She was suspended for four months without pay and put on notice that any future transfers of school assignments must be first obeyed and then grieved, absent a recognized exception to that principle (Id. p. 16). She began her four-month suspension without pay on November 11, 2004 (Dcf. Not. of Mot. Ex. A, Complaint [hereinafter Complaint] T[ 47).
ln November 2004, she commenced an Article 75 proceeding in Supreme Court, New

York County seeking to confirm in part and modify in part the arbitration decision (Def. Not. of
~~

`By letter dated July 21 2006, defendant indicated it would not put in further papers.
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Mot. Ex. D, Mutter o Gregg-Mullings v Department of Ea'uc., Sup. Ct., New York County, h d . f 1 155 17/2004). In essence she sought a judgment confirming the arbitrator's decision as to the

two specifications in her favor, and a revcrsal as to the other specifications, and in addition a
declaration that she receive her salary for the days marked as unauthorized absenccs, be restored to her position with full pay for the period of suspension, and the charges expunged from her record. The Dcpartment of Education cross-moved to dismiss the petition and to confirni the arbitration award (Def. Not. of Mot. Ex, E). Gregg's petition was denied by another justice of this court on January 7, 2005, and the cross-petition was granted (Def. Not. of Mot. Exs. H, I).

On appeal, the Appellate Division, First Department affirmed the nisiprius court. (Mutter o f
Gregg v Department o Educ. ofCit;y ofN. Y. , 22 AD3d 254 [ZOOS]). The Court of Appeals f denicd leavc to appeal (6 NY3d 714 [2006]).

In December 2004, plaintiff filed a Notice of Claim, pursuant to Gen. Mun. L. 6 50-e
(Aff. of James Cox, Ex. M). The Notice of Claims sets forth a claim of $58,40528 consisting of
five claims of lost wages primarily arising from the time during which she was suspended, the

days which were the subject of the arbitration hearing, and five days which were the subject of a grievance proceeding which resulted in a denial (Complaint

17 52-53, 57).

Her summons with

notice were filed on January 20, 200G, and thc Coinplaint, verified on March 6, 2006, was apparently filed and served thereafter.

The Complaint contains many of the same allegations concerning the events leading up to
plaintiffs suspension, the arbitration hearing, the determination, and afterwards. It also alleges that plaintiff only reccived her salary for the period of March 14, 2005 through April 30, 2005 in her June 30, 2005 paycheck without interest (Complaint
3

7 57).

In addition, she was notified that

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she had been transferred as of May 2005 to a different high school and although she subscquently received an authorization letter returning her to her former school, there have been further attempts to transfer her to a different school following a reorganization (Complaint 77 7 2 , 78, 8990). She filed a grievance and as of the time of the drafting of the Complaint, had gone through a Step I1 hearing but had not yet been issued a dccision from the Department of Education

1 (Complaint 17 78-8 1). She claims that defendant continues to dismiss her contractual and legal
claims to her teaching position, has made no good faith efforts to comply with the arbitration decision, the collcctivc bargaining agreement, or the provisions of the Education Law, and has violated her right to due process and equal protection (Complaint 11 84-87, 92). 11

In addition, the Complaint also alleges that on January 24, 2005, her name and "presumed
charge" was in an article in the New York Post entitled "Class Clowns Bad-Apple Teachers Stay at Full Pay," which "smeared" her "good reputation" and that she had been informed by the reporter that his information had been obtained from a copy of the arbitration hearing dccision received from the Department of Education (Complaint 7 58; Def. Not. of Mot. Ex. J). In a January 2006 segment of "20/20," this same article was allegedly featured in a segment entitled "Stupid in America'' (Complaint 7 88). Defendant moves for summary judgment and dismissal of the Coinplaint on several grounds. It argues among other bases that the action is barrcd by the doctrines of resjudicata and collateral estoppcl, that plaintiffs claims are barred by the applicable statute of limitations,
and that her defamation claim fails to state a cause of action or to comply with the mandatory

notice of claim requirement.

Legal Analysis

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A motion for summary judgment is a drastic measure and to be used sparingly ( Wanger v
Zeh, 45 Misc 2d 93 [Sup. Ct., Albany County], nff'd 26 AD2d 729 [3rdDept 19651). Summary
judgment is propcr when there are no issues of triable fact. (Alvnrez v Prospect Hospital, 68 NY2d 320, 324 [ 19861). To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of sunirnary judgnicnt in his or her favor. (GTFMtkg, lnc. v Coloriial AIurninuin Sules, Inc., 66 NY2d 965,
967 [ 19853). Once this burden is met, the burden shifts to the opposing party to submit proof in

admissible form sufficicnt to create a question of fact requiring a trial (Kosson v Algaze, 84 NY2d 1019 [ 1995]). Where a movant demonstrates its entitlement to suimnary judgment, the burdcn of opposing such a motion is to demonstrate by admissible evidence the existence of a material issue of fact requiring a trial (Zuckerrnan v City ofNew York, 49 NY2d 557,563
[ 19801). Bare conclusory allegations are insufficient to defeat a motion for summary judgmcnt

(See, Thunasoulis v. Nationul Assn. for the Speciulty Foods Trcide, Inc., 226 AD2d 227 [ 19' Dept 19961; Lee v Weinstein, 116 AD2d 700 [2d Dept], lv denied 68 NY2d 601 [1986]). It is insufficient to offer suspicions, sumiscs, and accusations (Zuckerrnan v City o New York, supra, f at 557). Unsubstantiated allcgations are also insufficient (Id).
Res jzdicata or claim preclusion, refcrs to the cffect of a valid and final judgment in favor

of the defendant which bars the plaintiff from bringing another action on the same cause of action ( 5 Weinstein, Korn, Miller, New York Civ. Prac., 7 501 1.08). When the cause of action in the subsequent suit is the same as that in the prior suit, claim preclusion will prevent the parties from raising both matters that were actually litigated and those that might have been litigated

(Drogo v Buller, 60 AD2d 5 18 [ 19' Dept. 19771j, Jn contrast, collateral estoppel or issue
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preclusion applies when the second action is brought on a different cause of action than that asserted in the first, and applies only to issues rather than the entire causes of action ( 5 Weinstein, Korn, Miller, New York Civ. Prac., 7 501 1.24). Issue preclusion prevents the parties from litigating issues that were actually litigated or necessarily determined in the earlicr suit

(Gramutntz Honzc Itiveslors Corp. v Lopez, 46 NY2d 48 1 [ 19791). These principles are designed
to conserve judicial rcsources by discouraging redundant litigation, and are based on the premise

that once a pcrson has been afforded a full and fair opportunity to litigate a particular issue, he or she may not be pemiittcd to do so again (Id. at 485).
An examination of thc Complaint finds that although plaintiff attcmpts to argue that her

claims are separate and distinct from the events surrounding her suspension and the arbitrator's decision, with whose determination shc is clearly unhappy, she is, for the most part, unpersuasivc. As defendant sets forth in its mcmorandum of law, much of what is contained in the instant Complaint, including plaintiffs "last legal assignment," the issue of unpaid wages for days marked as "unauthorized absences," and that the arbitration decision's description of Charge 4 does not agree with Finding 4, were all assertcd in the prior Article 75 proceeding, and are barred by claim preclusion. Howcver, certain of the claims contained in the Complaint had not ripened at the time shc served her Notice of Claim. For instance, she undertook two grievance proceedings concerning lost wages, one covering 20 days, and one 5 days, which were both ultimately concluded aRer she served the Notice of Claim.' In both of those situations, however, plaintiffs recoiirse, after

2Plaintjff sought to resolution of the 20 days loss by letter to the school payroll secretary in Decembcr 2003, which lead to a Step LII payroll grievance in May 2004, and a hearing before the chancellor's representative in November 2004, resulting in a denial of reirnburserncnt of

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continuing the grievance process through to its conclusion, was commencement of an Article 78 proceeding to review each of the administrative determinations (CPLR 7801 [ 1I). Because CPLR 2 1 7( 1) provides that an Article 78 proceeding must be commenced within four months of the date of the final determination, she appears to be time barred from commencing a proceeding to review the outcome of either of these two grievances (Carter v State ofNew Yo& 95 NY2d 267,

270 [2000]).3 Similarly, the Complaint states that plaintiff has commcnccd another

grievance

proceeding, apparently concerning the efforts to transfer her, but has not yct received a decision lrom thc Department of Education. The court has no subject matter jurisdiction over this claim, as she must pursue the grievance through administrative channels and then commence a separate summary proceeding, if necessary, to review the administrative determination.

In addition, plaintiff lacks standing to assert a claim alleging a breach of the collectivc
bargaining agreement by defendant as concerns its failurc to alter her U rating. When an employer and a union enter into a collcctive bargaining agrecmcnt that creates a grievance procedure, an employee subjcct to the agreement may not sue the employer directly for breach of that agreerncnt (Board ojEcluc. v Arnbach, 70 NY2d 501, 508 [1987]). Instead, the employee
must proceed, through the union, in accordance with the contract, and only if-the union fails in its

duty of fair representation can the employee litigate a contract issue directly against the employer

salary (Complaint 71 33, 49). Plaintiff argues this decision "ignore[d] the arbitration decision." 1 (Complaint 7 49). A second payroll hearing also in November 2004 involved her claim for thc 1 five days' missing wages whilc on adrninistrativc duties (Complaint 7 1 52-53). This grievancc was denied by letter dated Januaryl3,2005 (Complaint 7 57). 3Educ. L. tj 3020-a(5) allows only 10 days for an employee or the employing board to make an application to State Supreme Court to vacate or modify the decision of the hearing officer pursuant to CPLR 75 1 1.

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(Id.), Even if plaintiff, who argues that she is entitled to "legal" rather than "contractual" relief,
were entitled to turn to the court, she is precluded from this course because of the running of the statute of limitations, given that the court is restricted to an Article 78 review of the administrative determination, and that proceeding must be commenced within four months of the determination (CPLR 217; see, e.g., Schachter v Community School Bd. Dist., 88 AD2d 588 [2d Dept. 19821).

As concerns thc claim of defamation, the elements of the tort are, "a false statement,
published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard," which causes either "special hami" or constitutes "defamation pcr se" (Dillon v City ofNcw York, 261 AD2d 34, 38 [ lstDept. 19991, citing Restatement [Second] of Torts 8 558). The statute requires that "the particular words complained of
~

,

. be set

forth in the complaint." (CPLR 301G[a]). In addition, the complaint must allege the time, place, and manner of the false statement and specify to whom it was made (Dillon, at 38). Here, the Complaint alleges that twice the contents of the October 20, 2004 arbitration decision were published, once on January 24,2005 in the New York Post, and again in January 2006 on ABC's
"20/20." The Complaint does not indicate the particular words at issue in either instance,

although it alleges that the NY Post article "smeared her reputation," and it is silent as to the date and time of the "20/20" program or any information other than that the program mentioned the

Post article. For this cause of action, plaintiff failed to serve a Notice of Claim (Educ. L. (j
3813; Gen. Mun. L. 5 50-e[ l]a[a]). The service of a notice of claim upon the City is a condition

precedent to the commencement of an action sounding in tort against the city (Mercado v New

York City Heulth CC Hosps. c`orp., 247 AD2d 55,61 [Is` Dept. 19981; Rodriguez v Civ ofNew

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York, 169 AD2d 532,533 [l" Dept. 19911). The Chief of thc Law Division in the Office of the New York City Comptroller avers that on April 14,2006, he searched the books and records of the Comptroller's Office for any notices of claim filed by plaintiff against defendant (Cox Aff.1
6). The only Notice o r Claim found by Mr. Cox was the December 10, 2004 Notice of Claim,

which does not contain the causes of action sounding in defamation since they allegedly accrued after the filing and service of the Notice of Claim (Cox Aff.
7). Accordingly, the allegations of

defamation must be dismissed without prejudice to plaintiff's commencing a proceeding seeking permission to file a late noticc of claim and then to file an amended summons and complaint, within the pertinent statute of limitations. lurning to the Complaint's allegations of violations of due process and eqital protection, the court holds that plaintiff fails to raise an issue of fact such that summary judgment and dismissal would not be appropriate. Education Law

5 3020 (1) recognizes that tenurcd teachers

have constitutionally protccted interests in their rights to continued employment which cannot be deprived without due process. Here, however, the Complaint makes no allegations of receiving inadequate noticc of the charges against her or that she lacked an opportunity to prescnt her

f f f f defenses (see, Matter o Abmmuvich v Board o Eclzic. of Cetzt. School Dist. No. 1 o Towns o
Brookhuveir & Smithtown, 46 NY2d 450, 454, cert dmied 444 U.S. 845 [ 19793). Nor does she
set forth allegations that raise yuestioiis of fact concerning possible a violation of equal

protection rights. Summary judgment is appropriate when there is no genuine issue as to any material fact and the disposition of the causes of action may be decided as a matter of law (Security Pacific Bus. Credit, Itic. v Peist MarwickMllin & Co., 79 NY2d 695, reurg denied 80 NY2d 918 [ 19921).
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Here, defendant establishes that it is cntitled to suinrnary judgment and plaintiff does not raise any triable issues of fact. Accordingly, defendant's motion for summary judgment and dismissal

of the complaint is granted in its entirety, although without prejudice to plaintiffs commencing a
new action, should she desire to do so, concerning hcr claim sounding in defamation, after she has sought leave to file a late notice of claim and provided the claim is timely brought. Plaintiffs motion for a default judgment and for sunmary judgment is, accordingly, denied as academic. Were the motion for a default judgment to be considered, it would be denied, based on the procedural posturc of the parties. Defendant has since put in papers and has been a vcry active litigaiit. It would be an injudicious use of the court's time and resources to issue a dcfault judgment, which the defendant would then inove to vacate. Where a party seeks to vacate a default judgment, the court will grant the motion if that party provides a justifiable excuse for the default and a meritorious defense (Bumsch v Micucci, 49 NY2d 549 [ 19801).

Here, defendant's reason for needing more time was that it was still gathering materials
pertaining to the prior Article 75 proceeding and was hlly investigating plaintiffs claims in the instant matter (De. Aff. in Opp. 5 ) . Plaintiffs pointing out that defendant explained in court that it needed more time to obtain an affidavit concerning a matter which she had not "claimed" (PI. Reply 1 5 ) , is of little persuasion, given that the affidavit of Mr. Cox established that 1 plaintiff had not served a notice of claim for the claims of defamation and that she cannot continue to pursue those claims in this action. Dcfendant's defenses, as set forth above, are meritorious. Therefore, were defendant to make a motion to vacate its default, the court would grant it, It is ORDERED that defendant Department of Education of the City of New York's motion to
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dismiss, converted by the court into a motion for summary judgment, is granted, and the complaint is dismissed in its entircty, with costs and disbursements to defendant as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; without prejudice to plaiiitiff commencing a new cause of action claiming defamation, within the limits of thc running of the statutc of limitations and after receiving permission to serve a late notice of claim; and it is fiather
ORDERED that plaintiffs motion for a default judgment and summary judgment is

denied as academic; and it is further

ORDERED that the defendant shall serve a copy of this Order with notice of its entry
upon thc plaintiff, the Trial Support Office (60 Centre St., Rm. 158), the DCM Office (80 Centre
St., Rm. 102) and the Clerk of the Court (60 Centre St., Bsmt.); and it is further

ORDERED that the Clerk of the Court shall enter judgment accordingly.
This constitutes thc dccision and order of the court. Dated: October 10,2006 Ncw York, New York

(2006 Pt. 5 2 D&O-I 0 0 X 9 3 ~ 2 0 0 6 ~ 0 0 2 ~ 0 0 3 )

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