Opinion
11-12-2015
In re Michael RIESER, Petitioner–Respondent, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent–Appellant.
Zachary W. Carter, Corporation Counsel, New York (Deborah A. Brenner of counsel), for appellant. Michael Rieser, respondent pro se.
Zachary W. Carter, Corporation Counsel, New York (Deborah A. Brenner of counsel), for appellant.
Michael Rieser, respondent pro se.
Opinion Order and judgment (one paper), Supreme Court, New York County (Joan B. Lobis, J.), entered July 25, 2013, which granted the petition seeking to annul respondent Department of Education's (DOE) determination, dated April 18, 2012, discontinuing petitioner's probationary employment, and to expunge the unsatisfactory rating of petitioner's performance as a probationary teacher, unanimously reversed, on the law and the facts, without costs, the petition denied, and the proceeding brought pursuant to CPLR article 78, dismissed.
Petitioner failed to preserve his argument regarding the composition of the Chancellor's Committee, as he did not raise it at the administrative hearing (see Matter of Seitelman v. Lavine, 36 N.Y.2d 165, 170, 366 N.Y.S.2d 101, 325 N.E.2d 523 [1975] ). In any event, a substantial right of petitioner was not violated, since the Committee ruled unanimously in his favor (see Steinberg v. Board of Educ. of the City School Dist. of the City of N.Y., 69 A.D.3d 449, 449–450, 892 N.Y.S.2d 392 [1st Dept.2010] ).
Petitioner failed to show that DOE's determination to discontinue his probationary employment was made in bad faith, for a constitutionally impermissible purpose, or in violation of the law (see Kahn v. New York City Dept. of Educ., 18 N.Y.3d 457, 471, 940 N.Y.S.2d 540, 963 N.E.2d 1241 [2012] ). Nor did he show that his unsatisfactory rating was arbitrary and capricious (see Matter of Storman v. New York City Dept. of Educ., 95 A.D.3d 776, 777–778, 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] ). DOE's determination and petitioner's rating were rationally supported by, among other things, witness statements and the principal's letter describing his investigation and finding that petitioner had used corporal punishment on a special education student (see Matter of Johnson v. Katz, 68 N.Y.2d 649, 650, 505 N.Y.S.2d 64, 496 N.E.2d 223 [1986] ; Matter of Murnane v. Department of Educ. of the City of N.Y., 82 A.D.3d 576, 576, 919 N.Y.S.2d 24 [1st Dept.2011] ). There is no indication that the principal or DOE made their decisions in bad faith (see id. ).
FRIEDMAN, J.P., ACOSTA, RENWICK, ANDRIAS, MOSKOWITZ, JJ., concur.