In re Kolmel

• Decision Date: 18 October 2011
• Citation: 2011 N.Y. Slip Op. 07265,88 A.D.3d 527,930 N.Y.S.2d 573,272 Ed. Law Rep. 595
• Parties: In re William KOLMEL, Petitioner–Appellant,v.CITY OF NEW YORK, et al., Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 527

930 N.Y.S.2d 573

272 Ed. Law Rep. 595

2011 N.Y. Slip Op. 07265

In re William KOLMEL, Petitioner–Appellant,

v.CITY OF NEW YORK, et al., Respondents–Respondents.

Supreme Court, Appellate Division, First Department, New York.

Oct. 18, 2011.

Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York (Edward F.X. Hart of counsel), for respondents.MAZZARELLI, J.P., MOSKOWITZ, ACOSTA, RENWICK, DeGRASSE, JJ.

Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered June 10, 2010, which, insofar as appealed from as limited by the briefs, denied the petition seeking, inter alia, to annul the determination of respondent Department of Education (DOE) denying petitioner certification of completion of probation and terminating his employment as a probationary teacher, and denying his appeal of an unsatisfactory rating (U-rating) for the 2008–09 school year, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the petition granted to the extent of annulling the U-rating and the matter remanded to DOE for proper completion of the final review and recommendation.

The record shows that following three years of probationary service as a high school social studies teacher, petitioner had received satisfactory reviews and year-end reports. However, petitioner was informed he would not be recommended for tenure that year and agreed to enter into an agreement extending his probation through the 2008–09 school year. During this fourth year, petitioner received two satisfactory and two unsatisfactory classroom reports, two letters to the file for unbecoming conduct, and his principal gave him an unsatisfactory rating in each category on the year-end report (except voice and appearance, which were left blank) and an overall U-rating. As a result, it was recommended that petitioner be denied certification of completion of probation, which required termination of his service and precluded him from being hired by any other high school in the City.

“[A] ... probationary employee may be discharged for any or no reason at all in the absence of a showing that his or her dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law” ( Matter of Brown v. City of New York, 280 A.D.2d 368, 370, 721 N.Y.S.2d 497 [2001]; see Matter of Frasier v. Board of Educ. of City School Dist. of City of N.Y., 71 N.Y.2d 763, 765, 530 N.Y.S.2d 79, 525 N.E.2d 725 [1988] ). “Evidence in the record supporting the conclusion that performance was unsatisfactory establishes that the discharge was made in good faith” ( Matter of Johnson v. Katz, 68 N.Y.2d 649, 650, 505 N.Y.S.2d 64, 496 N.E.2d 223 [1986] ); the same standard applies when a teacher...