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Matter of Steinberg v Board of Educ. of City School Dist. of City of N.Y. 2008 NY Slip Op 32418(U) August 29, 2008 Supreme Court, New York County Docket Number: 0117001/2007 Judge: Nicholas Figueroa 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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ANNED ON 91312008

vs

BOARD OF EDUCAT
Sequence Number : 001
ARTICLE 78
6
IIIU

MOTION CAL.

NO,

Toirowing papers, numbered 1 to

were read on this motion to/for

Notice of Motion/ Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits Replying Affidavlts

...

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PAPERS NUMBERED

Cross-Motion:

,

0

Yes

9No

Upon the foregoing papers, it I ordered that thla motion s

Dated:

L L Q z K
FINAL DISPOSITION

Check one:

0 NON-FINAL DISPOSITION
REFERENCE

Check if appropriate:

0 DONOTPOST

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

In the Matter of MATTHEW STEINBERG,
Petitioner,
- against -

Index No. 117001/07

DECISION AND Ju DGMENT

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK and JOEL I. KLEIN, as Chancellor of the City School
District of the City of New York, Respondents, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

Nicholas Figueroa, J.: Petitioner seeks to reverse and annul respondents' determination dated August 28, 2007 terminating his position as a probationary public school teacher. Petitioner alleges that the determination was arbitrary, capricious and contrary to law. Specifically, he alleges the termination decision was the product of an improper review process. Petitioner argues that prior to submission to the respondent Chancellor, a termination decision must be reviewed by three persons for an advisory opinion. Petitioner argues the advisory

opinion was reviewed by an additional person; therefore, the termination was a nullity.
Respondents argue that the proceeding is barred by the statute of limitations and that the additional review did not make the determination unlawful. Further, respondents argue that the determination was not arbitrary or capricious. 1

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Petitioner was terminated as a probationary teacher on January 21, 2005. The termination resulted from petitioner's corporal punishment of a pupil. One of his fellow teachers observed him throw a crushed soda can at the student on December 6?2004. The can hit the pupil's neck or chest. On December 13,2004, petitioner met with the school Principal, Assistant Principal, and his union representative. Petitioner stated that the incident occurred on November 29,2004 and that a student had thrown the can at another student before petitioner tossed the can back at him for disposal. When the principal asked petitioner if he disputed the time, date and the events, he respondent "yes"; however, he said "no", when asked if the teacher who witnessed the event had any reason to make a false statement. However, he stated that the statements from the student might have been false, and made in an attempt to get back at him. The Principal informed petitioner that the students' and teacher's statements corroborated each other. Further, she informed him that an investigation after the incident revealed that he threw objects in his classroom. On December 21, 2004, petitioner received an unsatisfactory rating and the Principal recommended his dismissal, That same day, the Superintendent of Community School District #6 informed petitioner that on January 21, 2005, she would review and reconsider the question of petitioner's dismissal.

On January6,2005, petitioner appealed his unsatisfactoryrating to the Office ofAppeals and
Review of the Department of Education. On January 2 1, 2005, the Superintendent affirmed the termination decision.

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In accordance with respondents' by-law $4.3.2,petitioner's appeal was scheduled for a May
15,2006 hearing by a three member Chancellor's Committee. The Committee received copies of the Principal's written communication to petitioner, a December 14, 2004 investigation report, the teacher-witness's written statement, and the written statements from five students, including the student at whom petitioner threw the can. The students' statements corroborated the teacher's statement. The witnesses all stated that petitioner threw the can at the student. The principal testified at the hearing. She stated that she couldnot call the student witnesses, as they had all graduated since the incident. The teacher witness was not present at the hearing because the Principal had not been told to bring her. However, when the Principal offered to call the teacher, petitioner's representative objected.

Although petitioner was permitted to have witnesses testify on his behalf, either in person
or telephonically, he declined to do so.

The Chancellor's Committee, after reviewing the hearing record, declined to affirm the
termination decision. The Chancellor's Ccmmittee noted that there was no consensus on which part of the student's body (chest or neck) was struck by the can; however, there was no dispute that the can hit his body, The Committee was concerned that one witness statement did not mention the victim's name. The Committee noted that the Principal did not investigate the throwing incident in petitioner's class. The report stated that the union representative opined that the student witnesses should have been interviewed separately.

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Following a review by the Chancellor's Committee, an advisory report was prepared on October 30,2007 and reviewed by the Chancellor's representative, David Brodsky, before it was sent to the Chancellor's representative for a final determination. On January 25, 2007, the Chancellor's Committee Report was sent to the Chancellor's representative, the Local Instructional Superintendent ofDistrict Number 6. That superintendent left the Department of Education. Subsequently, on August 28,2007, the Community Superintendent reaffirmed the decision to discontinue petitioner's probationary service. Petitioner now objects to Brodsky's review, arguing that his review added a review that is not authorized by the collective bargaining agreement between the respondents and the United Federation of Teachers. Respondents argue that petitioner's time to challenge his termination expired four months after that event, and not four months after the termination. Respondents also argue that because the review proceedings, prior to the Superintendent's reaffirmation were advisory. Brodsky`s review did not make the latter determination unlawful. Respondents note that because petitioner's challenge is based only on Brodsky's review, the court need not examine the merits of the decision to reaffirm the termination decision. However, respondents argue, should the court reach that issue, the reaffirmation was not arbitrary or capricious. Petitioner, in reply, argues that because he is challenging a final determination, the reaffirmation, the challenge is timely. Additionally, in correspondence furnished after this matter

was fully submitted, petitioner argues that the proceeding is timely because he is challenging the
review process.

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Because petitioner's sole challenge is to the propriety of the administrative process and not the decision to terminate him, this proceeding is timely (seeMatter ofpersic0 v. Board ofEducation, 220 AD2d 5 12,5 13). However, as petitioner fails to demonstrate that he was deprived of any rights by Brodsky's review, or that the determination deprived him of any protection he was entitled to under the collective bargaining agreement, the determination cannot be reversed and annulled. Petitioner argues, in his memorandum of law, that "Although Brodsky attempts to mask his review as legal advise [sic], the only advise [sic] necessary at this stage of the review process is whether to accept or reject the committee's recommendation." This argument concedes that the advice to accept or reject the Committee's recornmendation is proper. As there is nothing to demonstrate that Brodsky's advice went beyond this permissible boundary, there is no basis to vacate the termination decision. In the instant case, the ultimate determination was made by the person authorized to make it, the Superintendent acting for the Chancellor, and there is no basis to find that the later determination was tainted by any unlawful acts. Cases petitioner relies on, Mutter of Brown v. Board of Education of the Ct of New York, iy 42 AD2d 702; and Mutter of Jacob v. Bourd of Education of the City of New York, 73 AD2d 623, are inapposite. Petitioner was given the opportunity to present proof at the Committee's

proceedings. He was given the opportunity to call witnesses but declined the invitation (ff. Matter

of Brown v. Board of Education of the City of New York, id.). Nor was petitioner deprived of a
f review by the appropriate person. Therefore, his reliance on Matter o Lehman v. Board of

Education of the City of New York, 82 AD2d 832, is also misplaced.
Petitioner was granted all the substantive and procedural rights he was entitled to. Therefore, the determination was lawful.
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Accordingly, it is

ADJUDGED that the petition is denied, the proceeding dismissed and the termination
confirmed. This constitutes the decision and judgment of the court.

Dated: August 29,2008

J.S.C.

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