Palmore v. Bd. of Educ. of Hempstead Union Free Sch. Dist.

• Decision Date: 30 December 2016
• Citation: 2016 N.Y. Slip Op. 08973,145 A.D.3d 1072,44 N.Y.S.3d 509
• Parties: In the Matter of Helisse PALMORE, et al., appellants, v. BOARD OF EDUCATION OF HEMPSTEAD UNION FREE SCHOOL DISTRICT, et al., respondents.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1072

44 N.Y.S.3d 509

2016 N.Y. Slip Op. 08973

In the Matter of Helisse PALMORE, et al., appellants,

v.BOARD OF EDUCATION OF HEMPSTEAD UNION FREE SCHOOL DISTRICT, et al., respondents.

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

Dec. 30, 2016.

Frederick K. Brewington, Hempstead, N.Y., for appellants.

Hamburger, Maxson, Yaffe & McNally, LLP, Melville, N.Y. (Richard Hamburger, David H. Pearl, Andrew K. Martingale, and David Yaffe of counsel), for respondents.

CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, and VALERIE BRATHWAITE NELSON, JJ.

In a proceeding pursuant to CPLR article 78 to review three determinations of the respondent Board of Education of the Hempstead Union Free School District dated June 19, 2014, terminating the petitioners' probationary employment as school principals, the petitioners appeal from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Janowitz, J.), entered April 28, 2015, as granted that branch of the respondents' motion which was pursuant to CPLR 3211(a) to dismiss the petition, denied the petition, and dismissed the proceeding.

ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.

The petitioners commenced this proceeding pursuant to CPLR article 78 to review three determinations of the respondent Board of Education of the Hempstead Union Free School District dated June 19, 2014, terminating their probationary employment as principals with the Hempstead Union Free School District. The petitioners appeal from so much of an order and judgment (one paper) of the Supreme Court, entered April 28, 2015, as granted that branch of the respondents' motion which was pursuant to CPLR 3211(a) to dismiss the petition, denied the petition, and dismissed the proceeding. We affirm.

On a motion to dismiss a petition pursuant to CPLR 3211(a)(1), the movant has the burden of providing documentary evidence that utterly refutes the petitioner's factual allegations, "conclusively establishing a defense as a matter of law" (Matter of Nassau Community Coll. Fedn. of Teachers, Local 3150 v. Nassau Community Coll., 127 A.D.3d 865, 866, 6 N.Y.S.3d 604 [internal quotation marks omitted] ). "On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7), the factual allegations in the pleading must be deemed true, and the petitioner must be afforded the benefit of every favorable inference" (Matter of Better World Real Estate Group v. New York City Dept. of Fin., 122 A.D.3d 27, 36, 992 N.Y.S.2d 247 ). "When evidentiary material outside the pleading's four corners is considered, and the motion is not converted into one for summary judgment, the question becomes whether the pleader has a cause of action, not whether the pleader has stated one and, unless it has been shown that a material fact as claimed by the pleader is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Matter of Clavin v. Mitchell, 131 A.D.3d 612, 614, 15 N.Y.S.3d 211 ). "As a general rule, one who objects to the acts of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law" (Matter of Sybalski v. Delaney, 140 A.D.3d 776, 777, 30 N.Y.S.3d 910 [internal quotation marks omitted] ).

A board of education has the right to terminate the employment of a probationary teacher or principal at any time and for any reason, unless the teacher or principal "establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith" (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 ; see Education Law §§ 2573[1], 3012[1] ; Sweeny v. Millbrook Cent. Sch. Dist., 130 A.D.3d 1011, 1012, 13 N.Y.S.3d 576 ; Matter of Johnson v. New York City Dept. of Educ., 73 A.D.3d 927, 927, 900 N.Y.S.2d 737 ). Here, the evidence submitted by the respondents conclusively established that the terminations of the probationary employment of the petitioners were based on "ineffective" ratings that the petitioners had received on their annual professional performance reviews, and were not for a constitutionally impermissible purpose, violative of a statute, or done in bad faith (see Matter of Johnson v. Katz, 68 N.Y.2d 649, 650, 505 N.Y.S.2d 64, 496 N.E.2d 223 ; Matter of Zarinfar v. Board of Educ. of the City School Dist. of the City of N.Y., 93 A.D.3d 466, 467, 939 N.Y.S.2d 702 ; Rivers v. Board of Educ. of City School Dist. of City of N.Y., 66 A.D.3d 410, 411, 886 N.Y.S.2d 159 ). To the extent that the petitioners are challenging the ratings they received on their reviews, the evidence conclusively demonstrates that the petitioners have failed to exhaust their administrative remedies, as they failed to avail themselves of an appeals procedure established pursuant to Education Law § 3012–c(5)(a) (see Matter of Sybalski v. Delaney, 140 A.D.3d at 777, 30 N.Y.S.3d 910; SC v. Monroe Woodbury Cent. Sch. Dist., 136 A.D.3d 650, 651, 23 N.Y.S.3d 906 ).

Accordingly, the Supreme Court properly granted that branch of the respondents' motion which was pursuant to CPLR 3211(a) to dismiss the petition, denied the petition, and dismissed the proceeding.

The respondents' remaining contention is without merit.

CHAMBERS, J.P., MILLER and BRATHWAITE NELSON, JJ., concur.

DICKERSON, J., dissents, and votes to reverse the order and judgment insofar as appealed from, on the law, and deny that branch of the respondents' motion which was pursuant to CPLR 3211(a) to dismiss the petition, reinstate the petition, and grant the petition to the extent of annulling the determinations to terminate the petitioners' probationary employment as principals, with the following memorandum:

In July 2010, the petitioners were appointed to three-year probationary terms as principals of various schools in the Hempstead Union Free School District (hereinafter the School District).

Pursuant to a memorandum of agreement between the School District and the Hempstead Supervisors and Administrators' Association, annual professional performance reviews (hereinafter APPR) of principals in the School District "will be considered as a significant factor in employment ... decisions although, regardless of any APPR, the District retains its rights to terminate principals for lawful reasons other than professional competence as provided by applicable law." The memorandum of agreement also provided that "APPRs will not be grievable, but will be subject to [an] appeals procedure," similar to the statutory appeals procedure for APPRs set forth under Education Law § 3012–c(5)(a).

On April 18, 2013, the Board of Education of the School District (hereinafter the Board) voted to terminate the petitioners' probationary employment prior to the expiration of their probationary period based on recommendations from Susan Johnson, the Superintendent of Schools (hereinafter the Superintendent). In June 2013, the petitioners, among others, commenced a prior proceeding pursuant to CPLR article 78, inter alia, to annul the determinations to terminate their employment, and to direct the Board, the School District, and the Superintendent (hereinafter collectively the respondents) to reinstate their employment.

In an order and judgment entered March 26, 2014, the Supreme Court, among other things, granted that branch of the petition which was to annul the determinations to terminate the petitioners' employment, but otherwise denied the petition. The court determined that the respondents failed to conduct or consider APPRs, which shall be a "significant factor" for employment decisions, including termination, pursuant to Education Law § 3012–c(1) and the memorandum of agreement. The respondents' appeal from the order and judgment was dismissed for failure to timely perfect.

In May 2014, the petitioners moved to direct the respondents to reinstate their employment with back pay and benefits based on the order and judgment entered March 26, 2014. In an order entered June 18, 2014, the Supreme Court denied the petitioners' motion. On a companion appeal, this Court is affirming that order on the grounds that (1) the petitioners could not contest the order on appeal to the extent their motion is treated as a motion pursuant to CPLR 5019(a) for resettlement; and (2) the petitioners failed to demonstrate their entitlement to relief under CPLR 5015(a) (see Matter of Evans v. Board of Education of Hempstead Union Free School District,

145 A.D.3d 1064, 44 N.Y.S.3d 507 [Appellate Division Docket No. 2014–08132; decided herewith] ).

In May 2014, the School District sent letters to the petitioners advising them for a second time that their employment would be terminated, effective July 30, 2014, based on recommendations from the Superintendent. Each of the May 2014 letters to the petitioners stated that "in addition to other reasons, including misconduct, the Superintendent ... has considered as a significant factor in her decision to recommend termination the APPR evaluation of your performance during the 2012–2013 school year " (emphasis added).

In November 2014, the petitioners commenced the instant proceeding pursuant to CPLR article 78 to annul the second determinations to terminate their employment and to reinstate their employment, with back pay and benefits. In an accompanying affidavit, the petitioner Helisse Palmore averred that the School District failed to comply with various requirements under Education Law § 3012–c for APPRs, including basing the assessment on "multiple school visits by a supervisor, a trained administrator or a trained [independent] evaluator, with at least one [or more] visit[s] conducted by the supervisor" (Education Law § 3012–c[2][h][4] ). Palmore explained that the second termination was "a fiction" because there was no opportunity for observations of the petitioners'...