Upon the foregoing papers, this Article 78 proceeding is dismissed.

FACTUAL AND PROCEDURAL BACKGROUND

This is an Article 78 proceeding in which petitioner is seeking to nullify as illegal, arbitrary, and otherwise unlawful an April 27, 2006 decision by respondents which terminated petitioner's probationary appointment and employment with the School District. In addition to the Court's annulling of the April 27, 2006 Decision, petitioner also seeks an order from the Court reinstating petitioner to his position retroactive to April 27, 2006, and requiring respondents to pay petitioner all salary and other benefits that would have accrued to him since April 27, 2006.

Petitioner had been employed from November 2005 to April 26, 2006 pursuant to an appointment as a probationary full time cleaner for the School District. For approximately two and one-half years prior to November 2005, petitioner had been working for the School District as a per diem custodian. It is not disputed that in his position as a per diem custodian, petitioner had received positive evaluations and recommendations from his prior supervisor and teachers (see Verified Petition, Exhibit 1). Nevertheless, as set forth in more detail below, based on claims of sexual harassment lodged against petitioner by two School District employees, Carolyn Courtney and Michelle Philippo (hereinafter "complainants"), respondents terminated petitioner from his position based on the findings of an investigation conducted by respondents' counsel (see Letter dated April 28, 2006 from Louis N. Wool, Superintendent of Schools to Joseph Angarano, Verified Answer, Exhibit H).

Petitioner, however, disputes that the sexual harassment investigation was the cause for his termination, and contends that the real reason behind his termination was retaliation (i.e., that the termination was made in bad faith). According to petitioner, in early 2006, petitioner witnessed a co-worker, Sue Alfano, being threatened by her supervisor (and petitioner's supervisor), James Ruto, Head Custodian. During this "tirade", petitioner alleges that Mr. Ruto falsely accused Ms. Alfano of reporting late to work. According to petitioner, at the beginning of Mr. Ruto's attack on Ms. Alfano, two other members of the School District's custodial staff were present, but left the room shortly after Mr. Ruto began screaming at Ms. Alfano. Petitioner claims that he remained in the room "to ... intercede in the event of physical violence and ... bear witness to Ruto's unhinged conduct" (Verified Petition at ¶ 6). It is petitioner's contention that as a result of his willingness to corroborate Ms. Alfano's version of the incident in connection with the formal complaint Ms. Alfano had made to the School District, Mr. Ruto "several times overtly threatened Petitioner, with the objective of silencing and intimidating him. Ruto then instigated a District investigation of Petitioner with the objective of securing his termination of [*2]employment" (Verified Petition at ¶ 9). Petitioner avers that although the School District began an investigation into Ms. Alfano's complaint, the investigation "excluded Petitioner the only neutral eyewitness observer of the incident who was prepared to corroborate Alfano's complaint regarding Ruto's bizarre and threatening misconduct" (Verified Petition at ¶ 8).

Petitioner contends that at approximately the same time the investigation into Ms. Alfano's complaint was occurring, the School District began a "pretextual" investigation of petitioner whereby the School District "solicited and encouraged" the complainants to file sexual harassment claims against petitioner for the sole purpose of "generating a paper trail'" to justify what petitioner claims was a "pre-determined decision to terminate his probationary appointment as well as his employment" (Petition at ¶ 11). It is petitioner's position that but for respondent' wrongful termination of him, his probationary employment status would have ended on or about May 1, 2006 and at that time, he would have acquired permanent civil service status.

Based on the foregoing allegations, petitioner claims that "Respondents' termination of Petitioner's probationary appointment was made in calculatedly bad faith, instigated by Ruto to punish Petitioner for having refused to abandon Alfano [during the tirade] .... and for having albeit symbolically expressed his belief that Ruto's conduct was grossly improper" (Verified Petition at ¶ 14).

Respondents have answered the petition, denying the material allegations and asserting three affirmative defenses: (1) that proceeding must be dismissed based on petitioner's failure to file a notice of claim with the School District; (2) that the petition fails to state a cause of action upon which relief may be granted; and (3) that respondents' termination of petitioner was made in good faith and with justification and, therefore, cannot be annulled since it was neither arbitrary nor capricious. In support of their answer, respondents have annexed affidavits from (1) the complainants (wherein they detail their allegations of petitioner's sexual harassment of them), (2) Robert Kalman, the principal of the elementary school at which petitioner was working (wherein he confirms, among other things, that he never received any information or concerns from James Ruto about petitioner), (3) Louis N. Wool, the Superintendent of the School District (wherein he confirms, among other things, that he never received any information or concerns from James Ruto about petitioner), and (4) the former and current members of the School Board who participated in the decision to terminate petitioner's employment on April 27, 2006 (which affidavits support that the School Board's termination decision was based solely on petitioner's inappropriate actions as set forth in the investigation report). Respondents also attach a copy the investigation report submitted to the School Board from respondents' counsel, Ingerman Smith LLP, dated April 26, 2006. Respondents contend that this investigation report provided the grounds for the School Board's decision to terminate petitioner. In addition to their complaints to the School District, Ms. Courtney and Ms. Philipo also lodged complaints against petitioner with the Westchester County District Attorney's Office in or about March 2006.

In petitioner's reply, petitioner disputes the School District's version of the events leading up to petitioner's termination. Petitioner also denies all of the complainants' allegations regarding the inappropriate comments and actions taken by petitioner which form the basis of their claims of sexual harassment. Petitioner further attests that it was Ms. Courtney who had initiated many conversations with him regarding her personal life (including her marital problems and invasive surgeries) and that Ms. Courtney "[r]epeatedly drew and left for [petitioner] smiley' face [*3]depictions, signed C', and addressed to Joey'", gave petitioner hugs for Valentine's Day and for the New Year, and gave petitioner greeting cards thanking him for being a good listener (Reply Affidavit of Joseph Angarano "Reply Aff."at ¶ 4). Finally, to discredit the veracity of Ms. Courtney and Ms. Philippo, petitioner points to various inconsistencies between the testimony they provided at the petitioner's hearing for unemployment benefits, their complaints and their affidavits submitted in connection with this Article 78 proceeding. Petitioner also suggests that although the affidavits submitted by the principal, Mr. Kalman and the Superintendent, Mr. Wool, deny that Mr. Ruto ever expressed his concerns and/or desire to terminate petitioner to them, the affiants fail to deny ever having heard Mr. Ruto's concerns or desires regarding petitioner's termination from others.

Petitioner argues that although the members of the School Board contend that their decision to terminate him was based on the investigative summary provided by respondents' counsel, given the investigatory summary's biased nature (which petitioner contends pre-determined his guilt and directed the School Board to terminate petitioner), there was "no decision making process indulged in by the members of the Board of Education" and the School Board merely engaged in the ministerial act of termination based on Ingerman Smith's direction. Accordingly, there was no "rational, reasoned, informed or otherwise proper exercise of the Board's lawful power" (Reply Aff. at ¶ 33).

Respondents' first affirmative defense is that the proceeding must be dismissed based on petitioner's failure to file a notice of claim with the School District as required by Education Law § 3813. That statute provides that "[n]o action or special proceeding, for any cause whatever ... or claim against the district ... shall be prosecuted or maintained against any school district, board of education ... unless it shall appear by and as an allegation in the complaint ... that a written verified claim upon which such action or special proceeding is founded was presented ... within three months after the accrual of such claim ...." (Education Law § 3813[1]). In their affirmative defense, respondents state that "[a]n employee wishing to appeal his ... discipline or discharge to the courts in an Article 78 proceeding must serve a notice of claim upon the school district within three (3) months of the imposition of the discipline" (Respondents' Answer at ¶ 19, citing Matter of Harder v Board of Educ., Binghamton City School Dist., 188 AD2d 783 [1992]; Matter of Stevens v Board of Educ. of McGraw Cent. School Dist., 261 AD2d 698 [1999], lv denied 93 NY2d 816 [1999]).

Petitioner argues respondents' affirmative defense is without merit because the cases cited by respondents emanate from the Appellate Division, Third Department, and the law in the Appellate Division, Second Department is to the contrary. A review of the relevant case law, however, demonstrates that petitioner is in error and that pursuant to provisions of Education Law § 3813, as interpreted by the Appellate Division, Second Department, petitioner was required to file a notice of claim prior to the institution of this proceeding.

It is well settled that Education Law § 3813(1) is a statutory condition precedent to a petitioner's bringing of a proceeding against a school district or board of education (Matter of Bd. [*4]of Educ. of City of Rochester v Nyquist, 48 NY2d 97 [1979]; Matter of O'Connor v Board of Educ. of Greenburgh-Graham Union Free School Dist., 11 AD3d 616 [2004]), and a petitioner's failure to comply is a fatal defect mandating dismissal of the action (Parochial Bus Sys., Inc. v Board of Educ. of City of New York, 60 NY2d 539, 568 [1983]). Here, because the claim seeks to vindicate a private right and does not fall within the categories of special proceedings courts have deemed to be exempt from the notice of claim requirement of section 3813 of the Education Law, petitioner was required to file a notice of claim prior to the institution of this proceeding (Matter of O'Connor v Board of Educ. of Greenburgh-Graham Union Free School Dist., 11 AD3d 616 [2004]; Matter of Sainato v Western Suffolk BOCES, 242 AD2d 301 [1997]; Matter of Cordani v Board of Educ. of Hempstead School Dist. No. 1, 66 AD2d 780 [1978]).

Matter of Cordani is directly on point. In that case, petitioner was a probationary teacher of music and was dismissed (effective June 30, 1977) pursuant to a determination of the respondent Board of Education dated June 23, 1977. On August 23, 1977, petitioner filed a notice of claim, but then did not initiate the Article 78 proceeding until November 28, 1977. The trial court dismissed the proceeding as untimely since it was commenced later than 4 months after the effective date of termination. Finding that the filing of the notice of claim provided petitioner with a 30 day toll within which to commence the Article 78 proceeding,^[FN1] the Appellate Division, Second Department held:

"[t]he proceeding herein is one seeking enforcement of a private, not a public, right. Specifically, petitioner seeks monetary relief as well as the equitable relief of reinstatement. Accordingly, the service of the notice of claim pursuant to section 3813 of the Education Law was mandatory" (Matter of Cordani, 66 AD2d at 780-781).

"[a]s a condition precedent to the commencement of this proceeding against the respondent Western Suffolk BOCES, the petitioner was required to present a notice of claim to the governing body of the school within three months from the accrual of his claim .... Although substantial compliance with the statute regarding the degree of

descriptive detail in the notice of claim is sufficient, the statutory requirements mandating notification to the proper public official must be fulfilled" (Matter of Sainato, 242 AD2d 301, 301-302 [1997]; see also Matter of O'Connor v Board of Educ. of Greenburgh-[*5]Graham Union Free School Dist., 11 AD3d 616 [2004] [petitioner required to file notice of claim in Article 78 proceeding seeking judicial review of respondent School District's determination reassigning petitioner to a new teaching position because claim sought to vindicate a private right]).

Thus, pursuant to the Appellate Division, Second Department's holdings in Matter of Cordani and Matter of Sainato, a notice of claim is a condition precedent to the institution of Article 78 proceedings in which petitioners are seeking judicial review of terminations of School District employees. Furthermore, the cases upon which petitioner relies are not to the contrary.

For example, Matter of Piaggone v Board of Educ., Floral Park-Bellrose Union Free School Dist. (92 AD2d 106 [1983]) involved an Article 78 proceeding brought by petitioner wherein it was alleged that the Board of Education's reappointment of petitioner to a part-time rather than full-time teaching position was violative of her tenure right under Education Law § 2510. In holding that a notice of claim was not required, the Appellate Division, Second Department explained that although recent decisions distinguish the need for a notice of claim based on a private-public right distinction, the decisions

"essentially restate well-settled, if sometimes forgotten, principles that distinguish claims' from legal rights, i.e., those claims that have already been reduced through enactment of positive law (e.g., Education Law, § 2510) or adjudication by an administrative agency or court (e.g., Education Law, § 3020-a) to judicially enforceable rights .... Obviously implicit in such legislation or adjudication is the government entity's knowledge of the nature of the claim asserted, hence, requiring a notice of claim subsequent to the conversion of the claim into a legal right would be superfluous. In practical terms, prior to commencement of a special proceeding pursuant to CPLR article 78, a petitioner will either have demanded of the government entity that it perform the clear specific legal duty as legislated or have submitted his claim to adjudication by that entity. Therefore, a notice of claim is not a condition precedent to a special proceeding properly brought pursuant to CPLR article 78 seeking either judicial enforcement of such duty or judicial review of such prior adjudication" (Matter of Piaggone, 92 AD2d at 108-109).

Indeed, the Court in Piaggone followed well established precedent holding that a notice of claim is inapplicable in cases seeking to vindicate tenure rights which are

"legal rights guaranteed by State law and in the public interest" (Matter of Cowan v Board of Educ. of Brentwood Union Free School Dist., 99 AD2d 831, 833 [1984], lv granted 62 NY2d 902 [1984], appeal discontinued 63 NY2d 702 [1984]). And the Piaggone Court further found mandamus relief to be entirely appropriate given that the School District had no discretion with regard to the need to appoint petitioner to a full time position pursuant to statutory requirements, and, therefore, the performance of that duty was ministerial in nature.

Similarly, the other cases cited by petitioner are also inapplicable insofar as they were CPLR Article 78 proceedings seeking mandamus relief through the "judicial enforcement of a legal right derived through enactment of a positive law" (Matter of Sharpe v Sturm, 28 AD3d [*6]777, 779 [2006]; Matter of Jones v Board of Educ. of Watertown City School Dist., 30 AD3d 967 [2006]). Therefore, based on the rationale presented in the Matter of Piggone decision, there was no need for a notice of claim since implicit in the enactment of the law is that the government entity has knowledge of the legislatively created legal right or duty.

Here, because petitioner is neither seeking mandamus relief through this Court's enforcement of a legal right derived through enactment of a positive law, nor the review of a determination by an administrative agency after an adjudicative process, there is no basis to find that petitioner was exempt from the notice of claim requirement prior to the initiation of this Article 78 proceeding. Accordingly, the Court is without jurisdiction over the School District pursuant to Education Law § 3813 (see Board of Educ, Union Free School Dist. No. 7., Town of North Heampstead v Heckler Electric Co., 7 NY2d 476, 481 [1960] [issue regarding satisfaction of notice of claim requirement went to the arbitrator's very jurisdiction]; Harder v Board of Educ., Binghamton Central School Dist., 188 AD2d 783 [1992]).

Even if the Proceeding Were Properly Commenced Without a Notice of Claim,

Respondents' Decision to Terminate Petitioner from His Probationary

Position Based on Claims of Sexual Harassment was Rational

and not Made in Bad Faith or for an Unlawful Purpose

Although not necessary to the determination of this proceeding, even if petitioner were not required to file a notice of claim with the School District prior to the initiation of this proceeding, the petition should nevertheless be dismissed because respondents' decision to terminate petitioner was neither arbitrary nor capricious. The arbitrary and capricious standard of review to be applied to all determinations terminating probationary employees is well settled:

"[a] probationary employee can be dismissed without a hearing and without a statement of reasons in the absence of any demonstration that dismissal was for a constitutionally impermissible purpose or in violation of statutory or decisional law' .... Judicial review of such a determination is limited to an inquiry as to whether the termination was made in bad faith' ... The burden of raising and proving such bad faith' is on the employee and the mere assertion of bad faith' without the presentation of evidence demonstrating it does not satisfy the employee's burden" (Matter of Medina v Sielaff, 182 AD2d 424, 427 [1992] [citations omitted]; see also Matter of Talamo v Murphy, 38 NY2d 637 [1976]; Matter of Pantaleone v Jackson, 204 AD2d 458 [1994], lv denied 84 NY2d 806 [1994]; Haberman v Codd, 48 AD2d 505 [1975]).

Here, petitioner has failed to proffer any evidence tending to establish that his termination was due to reasons unrelated to the investigation surrounding the claims of sexual harassment, and therefore, his conclusory assertions of bad faith retaliation are insufficient to warrant that an evidentiary hearing be conducted by respondents (Matter of Scott v Workers' Compensation Bd. of State of New York, 275 AD2d 877 [2000]; Matter of Beacham v Brown, 215 AD2d 334 [1995], lv denied 87 NY2d 801 [1995]; Matter of Medina v Sielaff, 182 AD2d 424, 427 [1992]). Here, other than his unsubstantiated assertions and references to minor inconsistencies in the stories provided by the complainants, petitioner has not provided any proof that his termination was retaliatory in nature and, therefore, made in bad faith (Matter of Davis v New York State Div. of Military and Naval Affairs, 291 AD2d 778, 779 [2002]; Matter of Williams v Commissioner of Office of Mental Health of State of New York, 259 AD2d 623 [1999]; Matter of Fenwick v Bratton, NYLJ, Mar. 19, 1996 at 26, col. 2 [1996] [existence of some variation in witness statements does not warrant conclusion that termination done in bad faith]). Accordingly, the petition should also be dismissed on its merits since petitioner has failed to provide any proof that the decision to terminate him was made in bad faith (i.e., to retaliate against petitioner based on his willingness to corroborate Ms. Alfano's complaint against petitioner's supervisor, Mr. Ruto), as opposed the investigation that had been conducted which found good cause to believe petitioner had subjected the complainants to unwanted advances of a sexual nature.

Based on the foregoing, it is hereby

ORDERED and ADJUDGED that the petition is dismissed.



Dated: White Plains, New York

January 16, 2007__________________________________

HON. JONATHAN LIPPMAN, J.S.C.

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