Preview
FILED: NEW YORK COUNTY CLERK 06/09/2017 11:32 AM INDEX NO. 650879/2017
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/09/2017
Index No. 650879/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
TERRELL WILIAMS,
Petitioner,
-against-
CITY OF NEW YORK; NEW YORK CITY
DEPARTMENT OF EDUCATION; CARMEN
FARINA, CHANCELLOR of NEW YORK CITY
DEPARTMENT OF EDUCATION
Respondents,
To Vacate a Decision of a Hearing Officer Pursuant
to Education Law Section 3020-a and CPLR Section
7511
RESPONDENTS' REPLY MEMORANDUM OF
LAW IN FURTHER SUPPORT OF MOTION FOR A
STAY OF THIS PROCEEDING AND/OR TO
DISMISS THE PETITION
ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorney for Resp ondents
100 Church Street, Room 2-109(/)
New York, New York 10007
lperelma@law.rytc.gov
Of Counsel: Liliya Perelman
Tel: (212) 356-2387
Matter No. 2017-009689
Liliya Perelman,
Lawrence Profeta
Of Counsel
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SUPREME COURT OF THE STATE OF NEW YORK
COTINTY OF NEW YORK
X
TERRELL WILLIAMS,
Petitioner,
-against Index No. 65087912017
CITY OF NEW YORK; NEW YORK CITY
DEPARTMENT OF EDUCATION; CARMEN
FARINA, CHANCELLOR Of NEW YORK CITY
DEPARTMENT OF EDUCATION
Respondents,
To Vacate a Decision of a Hearing Officer Pursuant to
Education Law Section3020-a and CPLR Section 7511
X
RESPONDENTS' MEMORANDUM OF LAW IN
SUPPORT OF MOTION FOR A STAY OF THIS
PROCEEDING AND/OR TO DISMISS THE
PETITION
PRELIMINARY STATEMENT
Respondents cross-moved to stay and/or dismiss the Petition. In his opposition
papers, Petitioner neither opposed nor addressed Respondents' motion for a stay, and a stay is
particularly appropriate because on June 1,2077,the Court of Appeals granted Respondents'
application for leave to Appeal. A copy of the Court of Appeal's order is appended hereto. The
matters at issue in this proceeding will be resolved or directly affected when the Court of
Appeals issues a ruling regarding what is an appropriate penalty for Petitioner's substantiated
misconduct.l
t
For example, if this Court makes a decision on the merits that orders Petitioner's
reinstatement, it would be
contrary to thepolicy surrounding the automatic stay.Public funds would supply Petitioner'ssalary if this Court
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Petitioner's arguments in opposition to that part of Respondents' Cross-Motion
which sought dismissal of the Petition largely mirror those made in the original Petition, and fail
to rebut Respondents' arguments.
As established in Respondent's Cross-Motion, Petitioner was afforded all process
he was due, the New York City Deparlment of Education ("DOE") followed proper protocol, and
Petitioner's arguments fail to set forth any of the grounds in CPLR $751 I for vacatur, but rather
amount to merely a disagreement with the findings and penalty determined by the arbitrator.
If this Court is inclined to consider the merits of this proceeding, the Petition
should be dismissed in its entirety.
ARGUMENT
POINT I
IF THIS PROCEEDING IS NOT STAYED,
PETITIONER'S OPPOSITION FURTHER
DEMONSTRATES WHY THE PETITION
SHOULD BE DISMISSED FOR FAILURE TO
STATE A CLAIM.
CPLR $ 751 1 sets forlh the exclusive bases for vacating an arbitration award. See
Blamowski v. Munson Transportation Inc., 91 N.Y.2d 190, 194 (1997). "fD]isagreement .
with the way the arbitrator resolves a dispute . . . is not a statutory ground upon which an award
may be vacated." Burt Bldg. Materials Corp, v. Int'l Brotherhood of Teamsters, 18 N.Y.2d 556,
558 (1966) (internal citations omitted).
Petitioner's opposition only amounts to disagreement with the penalty, and does
not establish grounds for vacating the award. Petitioner argues that he had no individual choice
in the selection of the Hearing Officer, (see Petitioner's Opposition, fl3), but he is a member of a
ordered a reinstatement, whereas the Court of Appeals could determine that termination was appropriate in lightof
the circumstances surrounding Petitioner's misconduct.
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collective bargaining unit that has negotiated the choice of arbitrators on behalf of their
members. Pursuant to Arlicle 2I(G)(2) of the pertinent Collective Bargaining Agreement
("CBA"), hearing officers are selected from a rotational panel of arbitrators, the composition of
which is annually agreed upon by the DOE and the United Federation of Teachers ("UFT"),
Petitioner's union. See Article 21(G)(2) of the CBA for classroom teachers, publicly available at
http://www.ult.org/files/attachments/teachers-contract-2009-2018.pdf.
Petitioner argues that Hearing Officer Brogan "inexplicably" credited the
testimony of student witnesses rather than Petitioner. See Petitioner's Opposition, fl9, However,
"a hearing officer's determinations of credibility are largely unfeviewable because the
hearing officer observed the witnesses and was 'able to perceive the inflections, the pauses, the
glances and gestures-all the nuances of speech and manner that combine to perform an
impression of either candor or deception." Lackow v. Dept. of Educ., 51 A.D.3d 563, 568 (1st
Dep't 2008) (quoting Berenhaus v. Ward, 70 N.Y.2d 436,443 (1987)).
Petitioner further alleges that because Hearing Officer Brogan's first decision was
vacated by the First Department, "it is not unusual to assume she lost her impartiality in being
forced to change her original decision." See Petitioner's Opposition, n22. This is a conclusory
allegation that does not amount to any legitimate grounds to vacate the award based on bias. The
First Depaftment order did not require the use of a different hearing officer. See Exhibit E.
Furthermore, the First Department did not overturn the findings of fact, but rather only the
penalty that was assessed against Petitioner. See Exhibit E. Since HO Brogan's findings of fact
were not overturned, it was logical for her to be the hearing officer to reconsider the penalty.
Lastly, Petitioner's opposition states that "none of the students who testified at the
hearing ever complained about [his] alleged behavior, nor did they state during their testimonies
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that they considered any of [his] comments inappropriate." See Petitioner's Opposition, fl3. This
is, again, supportive of Hearing Officer Brogan's decision, which stated that the penalty would
focus on the wrongfulness of Petitioner's conduct and his lack of understanding that his actions
were wrong. See Exhibit B at 6-8. As DOE pointed out at the second arbitration, these
inappropriate conversations occurred over a long period of time, involved more than one student,
and involved more than twenty total incidents. See Exhibit C at 15, lines 18-24, Furthermore, the
fact that the inappropriate nature of Petitioner's misconduct may not have been readily apparent
to middle school students only highlights DOE's legitimate concerns. Petitioner is an adult
placed in a position of trust with his students and his actions caused legitimate concerns to the
2
adults and professionals who have the responsibility of educating and safeguarding students.
In sum, Petitioner fails to establish a basis under CPLR $ 751 1 to vacate the
award.
2
As stated in Respondents' Cross-Motion, Respondents contend that the only appropriatepenalty for this Petitioner
is termination.Because the First Deparlment order required Hearing Officer Brogan to consider a penalty less than
termination, Respondents contend for the purpose ofthis proceeding that a three and a halfyear suspension is
appropriate.
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CONCLUSION
For the foregoing reasons, Respondents respectfully request that the Court grant a
stay of this proceeding, or in the alternative, deny the Petition in its entirety, together with such
other and further relief as this Court deems just and proper.
Dated: New York, New York
Jwrc 9,2017
ZACHARY W. CARTER
Corporation Counsel of the
City of New York
Attomey for Respondents
100 Church Street, Room 2-109(f)
New York, New York 10007
(2t2) 3s6-2381
By:
Liliya
Assistant Corporation Counsel
6
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Preview
FILED: NEW YORK COUNTY CLERK 06/09/2017 11:32 AM INDEX NO. 650879/2017 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/09/2017 Index No. 650879/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK TERRELL WILIAMS, Petitioner, -against- CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; CARMEN FARINA, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION Respondents, To Vacate a Decision of a Hearing Officer Pursuant to Education Law Section 3020-a and CPLR Section 7511 RESPONDENTS' REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION FOR A STAY OF THIS PROCEEDING AND/OR TO DISMISS THE PETITION ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Resp ondents 100 Church Street, Room 2-109(/) New York, New York 10007 lperelma@law.rytc.gov Of Counsel: Liliya Perelman Tel: (212) 356-2387 Matter No. 2017-009689 Liliya Perelman, Lawrence Profeta Of Counsel 1 of 6 FILED: NEW YORK COUNTY CLERK 06/09/2017 11:32 AM INDEX NO. 650879/2017 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/09/2017 SUPREME COURT OF THE STATE OF NEW YORK COTINTY OF NEW YORK X TERRELL WILLIAMS, Petitioner, -against Index No. 65087912017 CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; CARMEN FARINA, CHANCELLOR Of NEW YORK CITY DEPARTMENT OF EDUCATION Respondents, To Vacate a Decision of a Hearing Officer Pursuant to Education Law Section3020-a and CPLR Section 7511 X RESPONDENTS' MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR A STAY OF THIS PROCEEDING AND/OR TO DISMISS THE PETITION PRELIMINARY STATEMENT Respondents cross-moved to stay and/or dismiss the Petition. In his opposition papers, Petitioner neither opposed nor addressed Respondents' motion for a stay, and a stay is particularly appropriate because on June 1,2077,the Court of Appeals granted Respondents' application for leave to Appeal. A copy of the Court of Appeal's order is appended hereto. The matters at issue in this proceeding will be resolved or directly affected when the Court of Appeals issues a ruling regarding what is an appropriate penalty for Petitioner's substantiated misconduct.l t For example, if this Court makes a decision on the merits that orders Petitioner's reinstatement, it would be contrary to thepolicy surrounding the automatic stay.Public funds would supply Petitioner'ssalary if this Court 2 2 of 6 FILED: NEW YORK COUNTY CLERK 06/09/2017 11:32 AM INDEX NO. 650879/2017 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/09/2017 Petitioner's arguments in opposition to that part of Respondents' Cross-Motion which sought dismissal of the Petition largely mirror those made in the original Petition, and fail to rebut Respondents' arguments. As established in Respondent's Cross-Motion, Petitioner was afforded all process he was due, the New York City Deparlment of Education ("DOE") followed proper protocol, and Petitioner's arguments fail to set forth any of the grounds in CPLR $751 I for vacatur, but rather amount to merely a disagreement with the findings and penalty determined by the arbitrator. If this Court is inclined to consider the merits of this proceeding, the Petition should be dismissed in its entirety. ARGUMENT POINT I IF THIS PROCEEDING IS NOT STAYED, PETITIONER'S OPPOSITION FURTHER DEMONSTRATES WHY THE PETITION SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM. CPLR $ 751 1 sets forlh the exclusive bases for vacating an arbitration award. See Blamowski v. Munson Transportation Inc., 91 N.Y.2d 190, 194 (1997). "fD]isagreement . with the way the arbitrator resolves a dispute . . . is not a statutory ground upon which an award may be vacated." Burt Bldg. Materials Corp, v. Int'l Brotherhood of Teamsters, 18 N.Y.2d 556, 558 (1966) (internal citations omitted). Petitioner's opposition only amounts to disagreement with the penalty, and does not establish grounds for vacating the award. Petitioner argues that he had no individual choice in the selection of the Hearing Officer, (see Petitioner's Opposition, fl3), but he is a member of a ordered a reinstatement, whereas the Court of Appeals could determine that termination was appropriate in lightof the circumstances surrounding Petitioner's misconduct. 3 3 of 6 FILED: NEW YORK COUNTY CLERK 06/09/2017 11:32 AM INDEX NO. 650879/2017 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/09/2017 collective bargaining unit that has negotiated the choice of arbitrators on behalf of their members. Pursuant to Arlicle 2I(G)(2) of the pertinent Collective Bargaining Agreement ("CBA"), hearing officers are selected from a rotational panel of arbitrators, the composition of which is annually agreed upon by the DOE and the United Federation of Teachers ("UFT"), Petitioner's union. See Article 21(G)(2) of the CBA for classroom teachers, publicly available at http://www.ult.org/files/attachments/teachers-contract-2009-2018.pdf. Petitioner argues that Hearing Officer Brogan "inexplicably" credited the testimony of student witnesses rather than Petitioner. See Petitioner's Opposition, fl9, However, "a hearing officer's determinations of credibility are largely unfeviewable because the hearing officer observed the witnesses and was 'able to perceive the inflections, the pauses, the glances and gestures-all the nuances of speech and manner that combine to perform an impression of either candor or deception." Lackow v. Dept. of Educ., 51 A.D.3d 563, 568 (1st Dep't 2008) (quoting Berenhaus v. Ward, 70 N.Y.2d 436,443 (1987)). Petitioner further alleges that because Hearing Officer Brogan's first decision was vacated by the First Department, "it is not unusual to assume she lost her impartiality in being forced to change her original decision." See Petitioner's Opposition, n22. This is a conclusory allegation that does not amount to any legitimate grounds to vacate the award based on bias. The First Depaftment order did not require the use of a different hearing officer. See Exhibit E. Furthermore, the First Department did not overturn the findings of fact, but rather only the penalty that was assessed against Petitioner. See Exhibit E. Since HO Brogan's findings of fact were not overturned, it was logical for her to be the hearing officer to reconsider the penalty. Lastly, Petitioner's opposition states that "none of the students who testified at the hearing ever complained about [his] alleged behavior, nor did they state during their testimonies 4 4 of 6 FILED: NEW YORK COUNTY CLERK 06/09/2017 11:32 AM INDEX NO. 650879/2017 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/09/2017 that they considered any of [his] comments inappropriate." See Petitioner's Opposition, fl3. This is, again, supportive of Hearing Officer Brogan's decision, which stated that the penalty would focus on the wrongfulness of Petitioner's conduct and his lack of understanding that his actions were wrong. See Exhibit B at 6-8. As DOE pointed out at the second arbitration, these inappropriate conversations occurred over a long period of time, involved more than one student, and involved more than twenty total incidents. See Exhibit C at 15, lines 18-24, Furthermore, the fact that the inappropriate nature of Petitioner's misconduct may not have been readily apparent to middle school students only highlights DOE's legitimate concerns. Petitioner is an adult placed in a position of trust with his students and his actions caused legitimate concerns to the 2 adults and professionals who have the responsibility of educating and safeguarding students. In sum, Petitioner fails to establish a basis under CPLR $ 751 1 to vacate the award. 2 As stated in Respondents' Cross-Motion, Respondents contend that the only appropriatepenalty for this Petitioner is termination.Because the First Deparlment order required Hearing Officer Brogan to consider a penalty less than termination, Respondents contend for the purpose ofthis proceeding that a three and a halfyear suspension is appropriate. 5 5 of 6 FILED: NEW YORK COUNTY CLERK 06/09/2017 11:32 AM INDEX NO. 650879/2017 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/09/2017 CONCLUSION For the foregoing reasons, Respondents respectfully request that the Court grant a stay of this proceeding, or in the alternative, deny the Petition in its entirety, together with such other and further relief as this Court deems just and proper. Dated: New York, New York Jwrc 9,2017 ZACHARY W. CARTER Corporation Counsel of the City of New York Attomey for Respondents 100 Church Street, Room 2-109(f) New York, New York 10007 (2t2) 3s6-2381 By: Liliya Assistant Corporation Counsel 6 6 of 6