Opinion
January 5, 1995
Appeal from the Supreme Court, Broome County (Coutant, J.).
Petitioner was a tenured physical education teacher employed at respondent's high school where he also served as the girls' coach for track and cross-country. During the 1988-1989 school year, allegations were leveled at petitioner concerning inappropriate physical contact with several of his female students. Respondent's Superintendent was unable to verify the charges but determined that petitioner had used poor judgment working with female students and instructed petitioner not to have physical contact with female students.
In 1991, another incident occurred resulting in an investigation and charges relating to incidents involving three students during the 1988-1989 school year and the 1991 incident involving a fourth girl. After a hearing pursuant to Education Law § 3020-a (2), a Hearing Panel determined that the 1988-1989 incidents involved conduct unbecoming a teacher and also found that a portion of the 1991 incident occurred, namely, insubordination for violating the Superintendent's directive to have no physical contact with female students. The Hearing Panel determined that termination was appropriate and terminated petitioner by resolution dated March 15, 1993.
Petitioner commenced this proceeding pursuant to CPLR article 78 alleging that his rights to procedural due process were violated and that the determination was not supported by substantial evidence. Supreme Court dismissed the due process claims and transferred the remainder of the proceeding pursuant to CPLR 7804 (g). Petitioner appeals the dismissed claims within the transferred proceeding.
Petitioner contends that the format of the notice, i.e., separately stating the factual specifics involved in all of the incidents followed by an itemization of the categories of misconduct (Education Law § 3012 [a], [b]) which were alleged to be applicable, denied him sufficient notice of the charges and the opportunity to adequately prepare a defense. We disagree. The conduct charged was clear and specific. The formal statement of the charges included as attachments the written statements by each of the four students involved. Petitioner was clearly advised of the alleged facts forming the basis of the charged misconduct. Similarly, respondent itemized the specific statutory categories including "conduct unbecoming a teacher" and "insubordination" that were violated by the incidents. The notice fairly apprised petitioner of the charges against him and permitted the preparation of an adequate defense (see, Matter of Block v. Ambach, 73 N.Y.2d 323, 332-334; Matter of Root v. Board of Educ., 59 A.D.2d 328, 330).
Similarly, the use of an inaccurate date which was misstated by one week as it related to an incident of touching which occurred in 1989 did not mislead or hamper the defense (see, Matter of Shurgin v. Ambach, 83 A.D.2d 665, 666, affd 56 N.Y.2d 700). While petitioner's version of the rubdown was at variance with the complaining witness, there is no dispute that the massaging occurred. The use of the "on or about" date involving a two-year-old occurrence was sufficient to apprise petitioner of the charged event (see, Matter of Jerry v. Board of Educ., 50 A.D.2d 149, 158, appeal dismissed 39 N.Y.2d 1057).
Finally, there is no merit to petitioner's contention that the determination lacks substantial evidence in the record (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176). It is respondent's function to weigh the evidence (see, Matter of New York City Bd. of Educ. v. Batista, 54 N.Y.2d 379, 384-385) and resolve issues of credibility when there is conflicting evidence (see, Matter of Heslop v. Board of Educ., 191 A.D.2d 875, 878). The evidence in the record fully supports respondent's determination.
Mikoll, Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, without costs, determination confirmed and petition dismissed.