Kushner v. Farina
| Decision Date | 30 June 2017 |
| Citation | 58 Misc.3d 738,66 N.Y.S.3d 385 |
| Parties | In the Matter of the Application of Danielle KUSHNER, Petitioner, For a Judgment Pursuant to Article 78 of the C.P.L.R. v. Carmen FARINA, Chancellor, New York City Department of Education, and New York City Department of Education, Respondents. |
| Court | New York Supreme Court |
Peter E. Brill Esq., Brill Legal Group, 15 Maiden Lane, New York, NY 10038, For Petitioner
Kurt Rose, Assistant Corporation Counsel, 100 Church Street, New York, NY 10007, For Respondents
Lucy Billings, J.Petitioner, formerly a special education teacher at respondent New York City Department of Education's Richmond Hill High School, seeks reinstatement to her former position with tenure and an annulment of respondents' rating of her performance as "ineffective" for the 2014–15 school year.
Petitioner began teaching special education as a permanent substitute in the Patchogue–Medford School District in the 2011–12 school year. In September 2012, respondent New York City Department of Education (DOE) hired petitioner to teach special education at the Richmond Hill High School, with a probationary period of three years. Petitioner received a "satisfactory" rating for the 2012–13 year, V. Pet. Ex. 1, at 1; V. Answer Ex. A, at 2, and an "effective" rating for the 2013–14 year. V. Pet. Ex. 1, at 2; V. Answer Ex. A, at 2. During these years, petitioner raised concerns with her union and at staff meetings about students' nonreceipt of mandated special education services.
At the beginning of the 2014–15 school year, petitioner submitted an "Application for Reduction of Probationary Service," based on her prior service as a permanent substitute teacher. V. Pet. Ex. 5, at 1; V. Answer Ex. BB, at 2. Section 1 of the application, titled "Jarema Credit," allowed petitioner to request credit for any prior substitute teaching service that was under supervision, consisted of more than 80 days of service in any 90 consecutive school days in the same school, and totaled at least 160 days of actual service during a school year. V. Pet. Ex. 5, at 1; V. Answer Ex. BB, at 2. Under Section 1, petitioner requested that DOE reduce her probationary period one year based on her 180 days of service as a permanent substitute teacher in the Patchogue–Medford School District during the 2011–12 school year.
DOE issued a written denial dated November 6, 2014, of petitioner's request, because her service was not in the New York City public schools. V. Answer Ex. BB, at 1. Petitioner denies receiving this written denial and alleges that she did not learn of the denial until after respondents discontinued her employment in August 2015. V. Pet. ¶ 35, Ex. 8.
During the 2014–15 school year, petitioner received "ineffective" ratings on all four required observations of her performance, V. Answer Exs. E, J, N, and P, as well as an "ineffective" rating for the 2014–15 school year. V. Pet. Ex. 7. In June 2015, DOE denied petitioner tenure and discontinued her employment effective August 12, 2015. Id. Ex. 8. Petitioner then lost a position teaching special education at another New York City high school for the 2015–16 year, see id. Ex. 10, because respondents erroneously had recorded petitioner's previous employment as "terminated" instead of "discontinued" and failed to correct the error. Id.¶ 33.
On June 26, 2015, petitioner filed an improper practice charge with the Public Employment Relations Board (PERB), NY Civ. Serv. Law § 209–a(1), alleging that respondents rated her "ineffective" and discontinued her employment in retaliation for her complaints about issues in Richmond Hill High School's special education department. V. Answer Ex. U. On February 12, 2016, after petitioner commenced this proceeding, an administrative law judge dismissed petitioner's PERB complaint, holding that respondents' ratings were based solely on her performance and were not in retaliation for her complaints, because the administrators evaluating petitioner had no knowledge of her complaints. Kushner v. Board of Educ. of City School Dist. of City of NY, 45 PERB ¶ 4515, 2016 WL 1169294 (Feb. 12, 2016).
On October 8, 2015, petitioner challenged the "ineffective" rating and discontinuance pursuant to New York Education Law § 3012–c, claiming respondents arbitrarily rated her "ineffective" for the 2014–15 school year, in retaliation for her complaints about special education issues. V. Answer Ex. W. On March 10, 2016, an arbitration panel held that petitioner's "ineffective" rating for the 2014–15 year was due solely to her performance and not in retaliation for her complaints. United Fedn. of Teachers, Local 2, AFT, AFL–CIO v. New York City Dept. of Educ., Op. & Award (Mar. 10, 2016) (Gavin, Arb.).
Petitioner commenced this proceeding November 30, 2015, to annul respondents' determination discontinuing her employment and denying her tenure and their "ineffective" rating of her performance for the 2014–15 school year. Insofar as petitioner challenges DOE's denial of her application for reduction of her probationary period, the applicable statute of limitations, C.P.L.R. 217(1), required her to commence the proceeding within four months after her receipt of DOE's denial. Banos v. Rhea, 25 N.Y.3d 266, 280, 11 N.Y.S.3d 515, 33 N.E.3d 471 (2015) ; Kahn v. New York City Dept. of Educ., 18 N.Y.3d 457, 462, 940 N.Y.S.2d 540, 963 N.E.2d 1241 (2012) ; Yarbough v. Franco, 95 N.Y.2d 342, 346, 717 N.Y.S.2d 79, 740 N.E.2d 224 (2000) ; King v. Department of Educ. of City of NY, 128 A.D.3d 443, 444, 8 N.Y.S.3d 327 (1st Dep't 2015). Respondents maintain that the statute of limitations bars petitioner from claiming any entitlement to a reduction of her probationary period because she failed to challenge their determination dated November 6, 2014, denying her application for that reduction within four months.
Since respondents maintain this defense, they bear the burden to show that they provided petitioner notice of their denial of her application more than four months before November 30, 2015. LaSonde v. Seabrook, 89 A.D.3d 132, 139, 933 N.Y.S.2d 195 (1st Dep't 2011) ; Vadell v. City of New York Health and Hosps. Corp., 233 A.D.2d 224, 225, 649 N.Y.S.2d 714 (1st Dep't 1996) ; Hilburg v. New York State Dept. of Transp., 138 A.D.3d 1062, 1063–64, 31 N.Y.S.3d 126 (2d Dep't 2016). Respondents must show that they mailed the determination to petitioner via their regular mailing procedures or that petitioner received actual notice of the determination. California Suites, Inc. v. Russo Demolition Inc., 98 A.D.3d 144, 152, 946 N.Y.S.2d 55 (1st Dep't 2012) ; Goldberg, Weprin & Ustin, LLP v. Pearlman, 83 A.D.3d 554, 555, 922 N.Y.S.2d 25 (1st Dep't 2011) ; Badio v. Liberty Mut. Fire Ins. Co., 12 A.D.3d 229, 229, 785 N.Y.S.2d 52 (1st Dep't 2004).
Although petitioner did not file her petition until more than a year after the date of the denial, November 6, 2014, petitioner attests that she never received the denial and only learned that her application was denied when she contacted respondents after DOE terminated her employment. V. Pet. ¶ 35. Respondents present no evidence that the determination dated November 6, 2014, actually was mailed or delivered to petitioner, or otherwise rebut her sworn allegation that she did not receive that determination, and thus fail to show that they provided her notice of the denial. Gonzalez v. Ross, 47 N.Y.2d 922, 923, 419 N.Y.S.2d 488, 393 N.E.2d 482 (1979) ; Ijbara v. City of New York, 300 A.D.2d 251, 253–54, 753 N.Y.S.2d 51 (1st Dep't 2002) ; Francis v. Wing, 263 A.D.2d 432, 432–33, 694 N.Y.S.2d 29 (1st Dep't 1999) ; City of Mount Vernon v. OMRDD, 56 A.D.3d 771, 771, 868 N.Y.S.2d 248 (2d Dep't 2008). See Banos v. Rhea, 25 N.Y.3d at 279–80, 11 N.Y.S.3d 515, 33 N.E.3d 471 ; King v. Department of Educ. of City of NY, 128 A.D.3d at 444, 8 N.Y.S.3d 327 ; California Suites, Inc. v. Russo Demolition Inc., 98 A.D.3d at 152, 946 N.Y.S.2d 55 ; Goldberg, Weprin & Ustin, LLP v. Pearlman, 83 A.D.3d at 555, 922 N.Y.S.2d 25. Therefore, based on the unrebutted verified petition's allegation that petitioner did not learn that DOE had denied her application for reduction of her probation until after DOE discontinued her employment August 12, 2015, petitioner's challenge of that denial, filed November 30, 2015, is timely.
Petitioner must complete a three year probationary period before she is eligible for tenure. NY Educ. Law §§ 2573(1)(a)(i), 3012(1)(a)(i). Before the expiration of her probationary period, DOE must notify petitioner whether she will be recommended for tenure. NY Educ. Law §§ 2573(1)(a)(i), 3012(2)(a). If respondents failed either to grant or to deny petitioner tenure upon the expiration of her probationary period and continued to employ her as a teacher, she acquired tenure by estoppel.
Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 N.Y.2d 110, 114, 659 N.Y.S.2d 199, 681 N.E.2d 366 (1997) ; Andrews v. Board of Educ. of the City School Dist. of the City of NY, 92 A.D.3d 465, 465, 938 N.Y.S.2d 67 (1st Dep't 2012) ; Triana v. Board of Educ. of City School Dist. of City of NY, 47 A.D.3d 554, 556, 849 N.Y.S.2d 569 (1st Dep't 2008). "Jarema Credit," V. Pet. Ex. 5, at 1; V. Answer Ex. BB, at 2, named for the original law's sponsor, Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 N.Y.2d at 114, 659 N.Y.S.2d 199, 681 N.E.2d 366, allows petitioner to use her prior service as a substitute teacher to reduce her probationary period by up to two years.
NY Educ. Law § 2573 (1)(a)(i) ; Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 N.Y.2d at 114, 659 N.Y.S.2d 199, 681 N.E.2d 366 ; McManus v. Board of Educ. of Hempstead Union Free School Dist., 87 N.Y.2d 183, 188, 638 N.Y.S.2d 411, 661 N.E.2d 984 (1995) ; ...
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