Errera v. Quinones

• Decision Date: 21 April 1986
• Citation: 501 N.Y.S.2d 399,119 A.D.2d 751
• Parties: , 31 Ed. Law Rep. 1228 In the Matter of Richard ERRERA, Petitioner, v. Nathan QUINONES, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 399

501 N.Y.S.2d 399

119 A.D.2d 751, 31 Ed. Law Rep. 1228

In the Matter of Richard ERRERA, Petitioner, v. Nathan QUINONES, etc., et al., Respondents.

Supreme Court, Appellate Division Second Department.

April 21, 1986.

Leonard J. Levenson, New York City, for petitioner.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Helen P. Brown, Susan R. Rosenberg and Michael C. Harwood, of counsel), for respondents Nathan Quinones, Bd. of Educ. of the City of New York, Harvey Garner and Community School Dist. No. 18.

Before NIEHOFF, J.P., and LAWRENCE, KUNZEMAN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Education, dated February 9, 1984, which, after a hearing, found the petitioner guilty of one of the charges against him and terminated his employment.

Determination confirmed and proceeding dismissed on the merits, with costs.

The board's denial of the petitioner's request to reopen the hearing was neither arbitrary nor capricious where the request came three months after the hearing was concluded and three weeks after a determination was issued, and the petition offered no excuse for his failure to offer his "new" evidence at the original hearing.

In addition, although there was a failure to comply with certain procedural rules, the petitioner did not object to these violations, nor has he established any prejudice as a result thereof. Therefore, the noncompliance with the rules in question does not require annulment of the determination (cf. Matter of Lehman v. Board of Educ., 82 A.D.2d 832, 439 N.Y.S.2d 670; Matter of Bivins v. Helsby, 55 A.D.2d 230, 389 N.Y.S.2d 917).

The testimony adduced at the hearing posed a clear-cut issue as to the veracity of the witnesses, which was for the hearing body to determine (see, Matter of Silberfarb v. Board of Coop. Educational Servs. Third Supervisory Dist., Suffolk County, 60 N.Y.2d 979, 471 N.Y.S.2d 257, 459 N.E.2d 482; Matter of Wiener v. Gabel, 18 A.D.2d 1025, 1026, 239 N.Y.S.2d 44). As the complainant's testimony was not incredible as a matter of law, and was sufficient by itself to constitute substantial evidence of the charge upon which the petitioner's dismissal was based (see, Matter of Sowa v. Looney, 23 N.Y.2d 329, 296 N.Y.S.2d 760, 244 N.E.2d 243), the board's determination must be confirmed (see, Matter of Collins v. Codd, 38 N.Y.2d 269, 379 N.Y.S.2d 733, 342 N.E.2d 524; Matter of Stork Rest....