Opinion
4544 Index 154728/13
12-12-2017
In re Stephanie BROWN, Petitioner–Respondent, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK, et al., Respondents–Appellants.
Zachary W. Carter, Corporation Counsel, New York (Kathy C. Park of counsel), for appellants. Heslop & Kalba, LLP, Brooklyn (Garfield A. Heslop of counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York (Kathy C. Park of counsel), for appellants.
Heslop & Kalba, LLP, Brooklyn (Garfield A. Heslop of counsel), for respondent.
Sweeny, J.P., Moskowitz, Kahn, Gesmer, JJ.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 5, 2015, which granted the petition brought pursuant to CPLR article 78 to, among other things, annul respondents' determination, dated January 9, 2013, reaffirming the June 25, 2012 unsatisfactory rating of petitioner's performance for the 2011–2012 school year and the discontinuance of petitioner's probationary service as an assistant principal at Community School 44, and ordered respondents to turn over to petitioner a complete and unredacted copy of the Chancellor's Committee report, unanimously reversed, on the law and the facts, without costs, the petition denied in its entirety, and the proceeding dismissed.
Petitioner's claim for reinstatement of probationary service is time-barred, because her petition was not filed within four months of her last work day of September 4, 2012 (see Kahn v. New York City Dept. of Educ., 18 N.Y.3d 457, 472, 940 N.Y.S.2d 540, 963 N.E.2d 1241 [2012] ).
Supreme Court erroneously annulled the unsatisfactory rating (U-rating) for the 2011–2012 school year. We have consistently held that a U-rating must be upheld where there is evidence in the record that rationally supports that determination
see Matter of Murnane v. Dept. of Educ. of the City of N.Y., 82 A.D.3d 576, 919 N.Y.S.2d 24 [1st Dept. 2011] ; Matter ofBrennan v. City of New York, 123 A.D.3d 607, 608, 999 N.Y.S.2d 62 [1st Dept. 2014] ). Moreover, a U-rating will be upheld unless a petitioner can demonstrate that it was made in bad faith or in violation of lawful procedure or a substantial right (see Matter of Richards v. Board of Educ. of the City Sch. Dist. of the City of N.Y., 117 A.D.3d 605, 606, 985 N.Y.S.2d 574 [1st Dept. 2014] ; Matter ofCohn v. Board of Educ. of the City Sch. Dist. of the City of N.Y., 102 A.D.3d 586, 587, 960 N.Y.S.2d 362 [1st Dept. 2013] ).
A petitioner bears the burden of proving bad faith, and merely asserting it is insufficient to satisfy that burden (Matter ofWitherspoon v. Horn, 19 A.D.3d 250, 251, 800 N.Y.S.2d 377 [1st Dept. 2005]; Pagan v. Board of Educ. of City Sch. Dist. of the City of N.Y., 56 A.D.3d 330, 330–331, 868 N.Y.S.2d 616 [1st Dept. 2008] ). Speculation or conclusory allegations of bad faith are simply not sufficient to meet that burden (see Matter of Che Lin Tsao v. Kelly, 28 A.D.3d 320, 321, 812 N.Y.S.2d 522 [1st Dept. 2006] ). "Evidence in the record supporting the conclusion that performance was unsatisfactory establishes that the discharge was made in good faith" (Matter ofJohnson v. Katz, 68 N.Y.2d 649, 650, 505 N.Y.S.2d 64, 496 N.E.2d 223 [1986] ; Matter of Richards, 117 A.D.3d at 606, 985 N.Y.S.2d 574 ).
Applying these principles to this case, it is evident that petitioner failed to meet her burden. Petitioner failed to attach the transcript of the hearing to her petition, and did not identify which, if any, of the documents that she submitted were offered as evidence at the hearing. Accordingly, we have no record on which we can evaluate her claims. Therefore, she did not meet her burden of proof and the U-rating should not have been set aside (see Matter of Rieser v. New York City Dept. of Educ., 133 A.D.3d 465, 466, 18 N.Y.S.3d 861 [1st Dept. 2015] ; Matter ofStorman v. New York City Dept. of Educ., 95 A.D.3d 776, 778, 945 N.Y.S.2d 281 [1st Dept. 2012],appeal dismissed 19 N.Y.3d 1023, 951 N.Y.S.2d 718, 976 N.E.2d 247 [2012] ).
There is no basis for turning over the Chancellor's Committee report.