Pepin v. N.Y.C. Dep't of Educ.

Citation49 N.Y.S.3d 399,148 A.D.3d 443
Parties In re Milciades PEPIN, Petitioner–Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent–Respondent.
Decision Date07 March 2017
CourtNew York Supreme Court Appellate Division

148 A.D.3d 443
49 N.Y.S.3d 399

In re Milciades PEPIN, Petitioner–Appellant,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent–Respondent.

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

March 7, 2017.


Milciades Pepin, appellant pro se.

Zachary W. Carter, Corporation Counsel, New York (Antonella Karlin of counsel), for respondent.

ACOSTA, J.P., RICHTER, MANZANET–DANIELS, GISCHE, WEBBER, JJ.

Order and judgment (one paper), Supreme Court, New York County (Lucy Billings, J.), entered December 17, 2015, to the extent appealed from, denying so much of the petition as sought to annul the "problem code" assigned to petitioner's employment file, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

In April 2011, petitioner commenced an article 78 proceeding to challenge the discontinuance of his probation as an assistant principal, the unsatisfactory rating (U–rating) he received, and the placement of a "problem code" in his employment file after findings of misconduct were made against him. The court granted the petition to the extent of annulling the U–rating and prohibiting the assignment of a problem code insofar as it was supported by the annulled U–rating or unsubstantiated conduct, and otherwise denied the petition and dismissed the proceeding. Petitioner did not appeal.

Petitioner commenced the instant proceeding in 2014, again challenging the problem code that was placed in his file in 2011 and respondent's alleged constructive termination of his license as a result of the problem code and its impact on his applications for a Certificate of Eligibility for employment in a supervisory capacity.

To the extent petitioner is again challenging the assigned problem code, since he neither alleged nor demonstrated that the problem code was based on impermissible grounds, the claim is barred by the statute of limitations and res judicata (see e.g. Beth Rifka, Inc. v. State of New York, 114 A.D.2d 560, 562, 494 N.Y.S.2d 771 [3d Dept.1985]...

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2 cases
  • Rubin v. Duncan, Fish & Vogel, L.L.P.
    • United States
    • New York Supreme Court — Appellate Division
    • March 7, 2017
    ... ... Corp. v. Mathiasen, 207 A.D.2d 280, 282, 615 N.Y.S.2d 384 [1st Dept.1994] ). However, because the Marital Trust never filed for bankruptcy, it ... ...
  • Kahn v. City of N.Y.
    • United States
    • New York Supreme Court — Appellate Division
    • September 29, 2020
    ...upon the discontinuance of his probationary employment is neither arbitrary nor capricious (see Matter of Pepin v. New York City Dept. of Educ., 148 A.D.3d 443, 49 N.Y.S.3d 399 [1st Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2468581 [2017] ). Petitioner lacks entitlement to an employment......

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