Gregory Zrake, the petitioner herein, seeks to clarify and augment the prior order of this court, dated the 16th day of June, 2005 (and entered June 22, 2005), as to the rights and obligations of the parties thereto as pertains to issues of back pay, benefits, insurance, pensions, ratings sheets, raises in salary, sick days, "CAR" days (sic), anniversary date, and etc. Mr. Zrake notes that he was advised by letter, dated the 28th day of September, 2005, that he had been retroactively terminated as of the 12th day of August, 2005, approximately seven weeks earlier. Mr. Zrake contends that inasmuch as the employing board must implement a hearing officer's decision within fifteen days of its making (citing Education Law 3020 and 3020-a, Appendix A, Rule 4, Part b), the seven-week-back-dating of his termination was arbitrary and entirely improper. As a result, Mr. Zrake argues that he was wrongfully denied back pay, pension contributions, medical coverage up to September 28, 2005, as well as negotiated pay raises and a lump sum retroactive raise under the September 2005 teachers' union contract. In addition, Mr. Zrake asserts that since his ratings sheets were designated "unsatisfactory, pending outcome of 3020-a Proceeding," which was never concluded in accordance with this court's June 16, 2005 order, the same should be reclassified to satisfactory or, at worst, to not applicable.

In response to the preceding, the respondent NYC Board of Education, by its counsel, underscores the fact that Mr. Zrake's employment with the Board was terminated by a separate July 31, 2005 arbitration decision which was issued on a different set of disciplinary charges (physical altercation with a parent) in contrast to the one herein concerned (pulling down the sweatpants of a female gym student). In refutation of Mr. Zrake's claim for back pay, the respondent NYC Board of Education, asserts that Mr. Zrake was paid his entire salary for the school year 2004 to 2005, including summer pay for July and August, and that his Teacher's Retirement System Tax Deferred Annuity Account has been properly credited (as per the database of the Unified Pension system). In any event, the board stresses that the Teacher's Retirement System, which makes the deduction and administers the subject account, is a separate legal entity from the respondent and was not made a party to this action. With regards to Mr. Zrake's rating, the board notes that ". . .an unsatisfactory rating does not become final and [*2]binding until the Chancellor of the DOE denies an internal appeal and sustains the rating." (citing, Bonilla v. Board of Education, 285 AD2d 548 [2d Dept., 2001]). Since Mr. Zrake's time for an internal appeal (three weeks of receiving an unsatisfactory rating, as per Art. 4, Section 4.33 of DOE by-laws) has expired, his claim for reversal of his rating is now barred. In other words, his failure to have sought an available internal appeal means that he failed to exhaust his administrative remedies; i.e., to have obtained a final determination which could be subject to article 78 review. Likewise, it is the board's position that Mr. Zrake should have sought reinstatement to payroll in order to obtain health insurance coverage during his period of suspension by way of an Article 78 (mandamus) proceeding; and, that his failure to have done so within four months of the DOE's failure to restore his health coverage is therefore now time barred. Furthermore, the DOE argues that any claim for money damages arising out of Mr. Zrake's decision to forego surgery due to non-coverage should be denied on the equitable basis of laches. For by not having timely advised the DOE of his surgical need during the period in question, he has now prejudicially precluded the DOE from avoiding liability for any damages that he has purportedly incurred.

In reply, Mr. Zrake argues that the three month span for which he seeks service credit is

the period 09/02/03 to 11/30/03, which is currently designated in his employment record as "non-credited breaks in service." Mr. Zrake then reiterates his arguments against the back dating of his termination, the failure to reclassify his ratings sheets, and notes that since the new September 2005 teachers' contract relates back from June 1, 2003 to August 31, 2005, he should be entitled to the raises for that period as well as the increased rate for September, 2005 (in light of his September 28, 2005 termination letter), which he approximates at $10,000.00. Furthermore, Mr. Zrake asserts that he is entitled to interest (8.25% per annum) on the July and November pension withholdings from his salary which were respectively deposited 5.33 and 1.66 months late on January 6, 2006, which he approximates at $107.00. Finally, with regards to health coverage, Mr. Zrake opines that the DOE has failed to establish a valid claim of laches; if anything, it is his reliance on DOE counsel's representation that the delay in his reinstatement was attributable to bureaucratic delay that caused him prejudice; to wit, to forego shoulder surgery. In addition, Mr. Zrake asserts that there was never an unequivocal refusal to his restoration to health coverage that would have invoked a need for article 78 relief. Mr. Zrake contends that the failure to have enrolled him for health coverage from May to September of 2005 resulted in an economic loss excluding pain and suffering of approximately $5,000.00 (inasmuch as COBRA quotes were obtained at about $1,000.00 per month).

It is clear that "[a] court may remit an administrative determination to a board for further proceeding including reconsideration." (See Matter of 50 Plaza Co. v. New York City Conciliation & Appeals Board, 104 AD2d 886). However, "it is well settled that the Court's power to review an administrative action is limited to whether the determination was warranted in the record, has a reasonable basis in law and is neither arbitrary nor capricious." (See Matter of Pell v. Board of Education, 34 NY2d 222, 356 NYS2d 833; Matter of Colton v. Berman, 21 NY2d 322, 287 NYS2d 647). On the other hand, "one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law." (See Watergate II apts. v. Buffalo Sewer Auth., 46 NY2d 52 and Lehigh Potland Cement Co. v. NYS Dept. Of Envtl. Conservation, 87 NY2d 136; and CPLR 7801[1]1). However, "exhaustion of administrative remedies is not required where an agency's action is [*3]challenged as either unconstitutional or wholly beyond its grant of power, where resort to an administrative remedy would be futile, or when its pursuit would cause irreparable injury." (See Watergate II apts. v. Buffalo Sewer Auth., supra).

The court's June 16, 2005 decision to which Mr. Zrake refers vacated the underlying arbitration award (Case #4534/the "gym" allegation) and remanded the matter to the Department of Education for a new hearing before a different hearing officer. That re-hearing was never held. Mr. Zrake was thereafter terminated, effective August 12, 2005, as a result of an independent arbitration ruling ("altercation" incident) on July 31, 2005.In light of the foregoing, Mr. Zrake's contention that his termination vis-a-vis the gym allegation was back dated is misconstrued. The September 28, 2005 termination letter that he received merely apprised him of his termination date with the DOE, stemmed from the altercation incident, and was obviously unrelated to the gym allegation.

The plain fact is that no suspension and/or termination can be imposed for the gym allegation since it was never re-heard as had been required by this court's June 16, 2005 ruling. Accordingly, Mr. Zrake must be compensated for any suspension that he incurred for the gym allegation that did not coincide with any suspension for the altercation incident.

This court was initially confused, however, with regard to the discrepant periods of alleged suspension for the gym allegation; i.e., whether Mr. Zrake's cessation of service for the gym allegation was May, June, and July 2005 or September, October, and November, 2003. The parties' respective counsels, via telephonic conference with chambers, agreed that Mr. Zrake had been paid for both periods and clarified their positions as follow. Mr. Zrake's demand is that he should receive pension service credit time for the mentioned 2003 period. The DOE, however, contends that said issue is exclusively the province of the Teacher's Retirement System which administers pensions. This court not only agrees with the petitioner, but finds the board's position to be disingenuous, untenable, and wholly unsatisfactory. In addition, respondent counsel's position that he had no knowledge as to how DOE paychecks are computed, only that they are issued by the New York City Comptroller's Office was additionally troubling. Furthermore, in view of the fact that the DOE has offered no convincing proof to substantiate its position, it simply defies logic to assert that the Teachers Retirement System is able to assess pension service credit without input from the board which employs and oversees the teachers. Accordingly, this court directs the DOE to advise the TRS, in writing, that Mr. Zrake was duly employed, that he was compensated, the amount of that compensation, and that his pension should be credited for the period September, October, and November 2003.

With regards to retroactive raises, the DOE, in its moving papers, offered no explanation as to why Mr. Zrake would not be entitled to receive the same for any periods covered by the contract during which he was employed by the DOE. It therefore followed that Mr. Zrake would have been entitled to whatever raises attached to time periods for which he qualified under the terms of the September 2005 Teachers' contract. However, inasmuch as the parties' counsels agree that to receive entitlement a teacher had to have been on the payroll at the time of the new teacher's contract, which Mr. Zrake was not since his employment had been terminated on August 12, 2005, it is clear that Mr. Zrake does not qualify for the retroactive raises herein under consideration.

Insofar as Mr. Zrake's entitlement to interest that he would have accrued but for the late transfers of pension contribution deposits, this court is unpersuaded by the DOE's argument that [*4]

the TRS is solely accountable therefor and should therefore have been included as a necessary party to these proceedings. In the absence of specific regulations and/or contractual provisions to the contrary, it only follows that the TRS can only make pension deductions from generated pay. DOE's counsel conceded that Mr. Zrake's back pay was made with interest as a result of its untimeliness. To the extent that the TRS' pension deductions were also occasioned thereby, then the DOE would also be liable for the lost interest. Unfortunately for Mr. Zrake, he has not furnished this court with sufficient proof to definitively establish the source of the delay, if any, in pension deductions. The record suggests that DOE made payments in July and November, 2005 whereas pension deductions were made [presumably by TRS] in January, 2006. From these facts alone, there is no basis whereby to glean the reason for the delay. For completion of the record, this court notes that the parties agreed, by stipulation dated the 14th day of August, 2007, that "[a]ll claims asserted in petitioner's instant motion for clarification against non-party TRS are withdrawn with prejudice, and without costs, fees, or disbursements."

Given that Mr. Zrake's ratings sheets were marked unsatisfactory pending the outcome of a 3020-a proceeding, it logically follows that the designation was provisional and would only have been maintained if substantiated by the contemplated hearing which, in this instance, was never held. DOE's argument that the provisional rating should have been appealed so as to exhaust administrative remedies, and thereafter followed by an Article 78 proceeding, if needed, is nonsense. A person could not appeal a tentative finding that is subject to a definitive ruling not yet rendered (and in this instance was never rendered). Common sense and logic say noone. Hence, this court was prepared to order that any unsatisfactory rating designation arising form the gym allegation must be removed from Mr. Zrake's personnel file poste haste. However, such a directive will not be necessary since the parties agreed, by stipulation dated the 14th day of August, 2007, that in exchange for Mr. Zrake's withdrawal, with prejudice, of his claim regarding performance evaluations, "[t]he New York City Department of Education will issue petitioner a new annual performance evaluation for the period 9/4/01 through 6//26/02 with a final rating of not applicable' and will remove the annual evaluation dated 6/13/02 and 9/11/02 from petitioner's personnel file."

Insofar as Mr. Zrake's health coverage is concerned, he has not established a legal basis which entitled him to rely on any purported representation of bureaucratic delay to forego surgery.

In this regard, the DOE correctly argues that his failure to have applied for coverage and to appeal any rejections constitute a failure to have exhausted available administrative remedies whereby to avail himself of Article 78 relief. It is also the case that he would not have been entitled to recoup the cost of alternate insurance, which he never actually purchased, since his first recourse should have been the administrative remedies available to him.

Wherefore, on the basis of all of the foregoing, Mr. Zrake's petition seeking to clarify and augment the prior order of this court, dated the 16th day of June, 2005 (and entered June 22, 2005), as to the rights and obligations of the parties thereto as pertains to issues of back pay, benefits, insurance, pensions, ratings sheets, raises in salary, sick days, "CAR" days (sic), anniversary date, and etc. is decided as follow, 1. Mr. Zrake was terminated on August 12, 2005 as a result of an altercation adjudicated at a July 31, 2005 arbitration ruling; 2. the gym allegation against Mr. Zrake was never substantiated; 3. any and all negative ratings vis-a-vis the gym allegation are to be removed from Mr. Zrake's DOE personnel file pursuant to the [*5]parties' written stipulation, dated the 14th day of August, 2007; 4. Mr. Zrake has been compensated for his entire tenure with the DOE (and received interest on his back pay); 5. Mr. Zrake is not entitled to retroactive raises stemming from the September 2005 Teachers' contract since he was not then employed by the DOE as required by the entitling terms of said contract; 6. Mr. Zrake failed to exhaust his administrative remedies with regards to denial of insurance coverage and thereby forfeited Article 78 review of the same; and 7. the issue of interest on his July and November, 2005 pension deductions is unresolvable on the facts herein presented. This constitutes the decision and order of this Court.

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