Petitioner seeks to reverse respondents' termination of petitioner's probationary employment and respondents' unsatisfactory rating of petitioner's performance as a teacher for the 2009-2010 school year. She claims that respondents' determination violated procedures prescribed in their handbooks and in the Collective Bargaining Agreement (CBA) between respondent Board of Education and petitioner's labor union, the United Federation of Teachers, and was arbitrary and capricious. C.P.L.R. § 7803(3). Respondents move to dismiss the petition on the grounds that reversal of the termination is barred by the applicable statute of limitations, and petitioner fails to state a claim for reversal of her unsatisfactory rating. C.P.L.R. §§ 217(1), 3211(a)(5) and (7), 7803(3), 7804(f).

I.THE PETITION TO REVIEW THE TERMINATION OF PROBATIONARY EMPLOYMENT IS TIME-BARRED.

This court may not review respondents' termination of petitioner's probationary employment because more than four months elapsed between her receipt of respondents' notice dated July 16, 2007, terminating that employment, and her commencement of this proceeding. C.P.L.R. § 217(1); Kahn v. New York City Dept. of Educ., 18 NY3d 457, 462 (2012); Anderson v. Klein, 50 AD3d 296 (1st Dep't 2008); Friedland v. New York City Dept. of Educ., 39 AD3d 395, 396 (1st Dep't 2007); Lipton v. New York City Bd. of Educ., 284 AD2d 140, 141 (1st Dep't 2001). Therefore the court proceeds to review respondents' further action that petitioner [*2]challenges: an unsatisfactory rating (U-rating) for the 2009-2010 school year. Kahn v. New York City Dept. of Educ., 18 NY3d at 470.

II.RESPONDENTS' U-RATING AND AFFIRMANCE OF THE U-RATING WERE ARBITRARY AND CAPRICIOUS.

Although respondents' failure to establish binding procedures for evaluating teachers may violate lawful procedure, C.P.L.R. § 7803(3); 8 N.Y.C.R.R. 100.2(o)(1)(iii)(a)(2), the court may not vacate respondents' evaluation of petitioner based on their violation of the Board of Education's Division of Human Resources Handbook, "Rating Pedagogical Staff Members." Brown v. Board of Educ. of the City School Dist. of the City of NY, 89 AD3d 486, 488 (1st Dep't 2011). Cf. Blaize v. Klein, 32 AD3d 363 (2d Dep't 2009). Nonetheless, petitioner presents admissible evidence of respondents' contractual obligation to provide pre-observation discussions or conferences as part of the evaluation process. This evidence consists of authenticated copies of the CBA and of the guidebook, "Teaching for the 21st Century," which respondents do not controvert. V. Pet. Ex. E, at 50-51, CBA art. 8, § 8J; Ex. G, at 29.

Respondents affirmed petitioner's U-Rating, not only without substantial evidence, but without any evidence whatsoever contradicting the testimony by petitioner that she never received a pre-observation discussion or conference. Id. Ex. C, at 59-60, 66. Although petitioner's principal testified regarding the standard procedure at their school, neither he nor anyone else testified whether that procedure was followed in petitioner's case, nor did respondents produce any other evidence that petitioner received pre-observation discussions or conferences. Id. at 23-24. Because respondents affirmed her U-rating without any evidence contradicting her testimony that she did not receive the required pre-observation discussion or conference, respondents' determination is "without sound basis in reason," "without regard to the facts," and therefore arbitrary. Pell v. Board of Educ., 34 NY2d 222, 231 (1974). See Goodwin v. Perales, 88 NY2d 383, 392 (1996); Soho Alliance v. New York State Liq. Auth., 32 AD3d 363 (1st Dep't 2006).

III.CONCLUSION

For the foregoing reasons, the court grants respondents' motion to dismiss the petition insofar as it seeks review of petitioner's termination from probationary employment, but denies the motion insofar as the petition seeks review of her U-rating for the 2009-2010 school year, and remands the proceeding to respondents for a new determination of her rating for that year. Because the court does not disturb respondents' determination to terminate petitioner's probationary employment, and no party indicates any incompleteness in the administrative record already presented to support the petition and the motion, the court perceives no purpose in proceeding further in this forum with an answer to the petition. See C.P.L.R. §§ 409(b), 7804(f), 7806; Nassau BOCES Cent. Council of Teachers v. Board of Coop. Educational Servs. of Nassau County, 63 NY2d 100, 102-103 (1984); Camacho v. Kelly, 57 AD3d 297, 299 (1st Dep't 2008). If any party seeks to show such a purpose, that party may move, by an order to show cause, to restore this proceeding. Otherwise this decision constitutes this court's judgment granting the petition to the extent set forth, denying the remainder of the petition, and dismissing the proceeding. C.P.L.R. §§ 7803(3), 7806.

DATED: May 31, 2012

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LUCY BILLINGS, J.S.C.