[*1]
Matter of Alva v New York City Dept. of Educ.
2015 NY Slip Op 50983(U) [48 Misc 3d 1205(A)]
Decided on June 24, 2015
Supreme Court, New York County
Hunter Jr., J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 24, 2015
Supreme Court, New York County


In the Matter of the Application of Milagros D. Alva, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

The New York City Department of Education and THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Respondents.




101224/2014



Petitioner:



Stewart Lee Karlin, Esq.



9 Murray St., Suite 4w



New York, NY 10007



(212) 732-9450



Respondents:



New York City Department



100 Church Street, Room 4-313



New York, NY 10007



(212) 356-1141


Alexander W. Hunter Jr., J.

The application by Milagros D. Alva ("petitioner") for an order pursuant to C.P.L.R. Article 78 to remove her name from the Department of Education's ("DOE") "ineligible" list for re-employment or in the alternative ordering a name-clearing hearing to dispute the charges which were the basis of the determination, is restored to the Motion Submission Part calendar for July 20, 2015. Respondent's cross-motion to dismiss the petition, is denied.



Petitioner was a former Spanish teacher with the DOE. In January 2014, after approximately six years of teaching, the petitioner resigned from her position as an English ISS (Special Education) and Spanish ISS teacher. Petitioner avers that she voluntarily resigned because she was asked to teach all of her classes for the Special Education Department in areas of concentration, such as English for which she was not hired nor certified to teach.



About a month after her resignation, the petitioner learned that the DOE was investigating Stephen Fucario ("Mr. Fucario"), the Assistant Principal of the Special Education Department and the petitioner's former significant other, when an investigator contacted her to ask her several questions regarding him. The petitioner alleges that at the time, she was never advised that she was the subject of the investigation and was assured that none of her answers would affect her ability to pursue future employment with the DOE. As a result, the petitioner informed the investigator that in 2013 grades were forged to reflect that more students had earned a passing score on the Spanish Proficiency Exam of June 2013 than actually had passed.



In July 2014, the petitioner decided that she wanted to teach again and applied for open positions with the DOE. In August 2014, the petitioner was offered and accepted a position as a Spanish teacher at Progress High School. As a result, the petitioner underwent a mandatory background check, which is required by the DOE for all new appointments. Soon thereafter, the petitioner was notified that her application for appointment had been denied because she was the subject of a 2014 Substantiated Special Commissioner of Investigation (SCI) case and was informed that she could reapply within twelve months from the date of denial. The notification letter further provided that the petitioner was given an opportunity to review the information with the Officer of Personnel Investigation (OPI) and provide additional information in support of her application.



Petitioner denies having received any notification that she was the subject of a SCI case and claims that she has not had an opportunity to respond to the complaint, nor has she been granted an opportunity for a name-clearing hearing. As a result, the petitioner commenced the instant proceeding to: (1) challenge her placement on the "ineligible" list as arbitrary and capricious and without a rational basis; and (2) request a name-clearing hearing so that she may be afforded an opportunity to clear her name. Respondent cross-moves to dismiss the petition on the grounds that: (1) this court lacks subject matter jurisdiction to review the petition; (2) the petition is time-barred by the applicable four month statute of limitation; (3) the petitioner failed to exhaust the available administrative remedies and appeals; and (4) the petition fails to state a cause of action.



An article 78 proceeding addresses "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed." C.P.L.R. § 7803 (3). Pursuant to Chancellor's Regulation C—105, "if, prior to the conclusion of any background investigation, information of a derogatory nature is obtained which may result in denying the application for license, certification or employment, an applicant will be given an opportunity to review such information with the [Office of Personnel Investigation] and to include in the investigatory file, any written statements or documents which refute or explain such information." In re Daniel Hasberry, 78 AD3d 609 (1st Dept. 2010).



C.P.L.R. § 3211(a) (7) provides that a party may move to dismiss one or more causes of action against it on the ground that the pleading fails to state a cause of action. In deciding a motion to dismiss pursuant to C.P.L.R. § 3211, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." Leon v. Martinez, 84 NY2d 83, 87-88 (1994). The complaint should be liberally construed in favor of the plaintiff. Robinson v. Robinson, 303 AD2d 234, 235 (1st Dept. 2003). In the case at bar, the petitioner alleges that she was not afforded an opportunity to review or provide a written statement to refute the claim that she was part of a SCI case in violation of Chancellor's Regulation C—105. When, as here, "the petition raises a question as to whether petitioner's procedural and substantive rights were violated, which cannot be determined as a matter of law upon the bare allegations of the petition. Only after respondents have answered can there be any meaningful disposition of this proceeding." Johnson v. Crown Hgts. Community Corp., 39 AD2d 889 (1st Dept. 1972). As a result, the respondent must answer the petition and the matter must be restored to the calendar for that purpose.



This court has considered the respondent's remaining arguments and finds that they are without merit.



Accordingly, it is hereby



ADJUDGED that the cross-motion by respondent for an order pursuant to C.P.L.R. 3211, is denied; and it is further



ORDERED that the respondent is directed to serve and file an answer to the petition within twenty (20) days after service with notice of entry; and it is further



ORDERED that the petition is restored to the Motion Submission Part calendar in Room 130, 60 Centre Street for August 3, 2015 so that the respondent may file an answer to the petition; and it is further



ORDERED that the respondent serve a copy of this order with notice to the Motion Submission Part in Room 130, 60 Centre Street.



This constitutes the order of this court.



Dated: June 24, 2015