Order, Supreme Court, New York County (Karen S. Smith, J.), entered May 5, 2008, which, insofar as appealed from, denied the branch of defendant Department of Education's (DOE) CPLR 3211(a)(7) motion to dismiss plaintiff teacher's cause of action under 42 USC § 1983, unanimously reversed, on the law, without costs, and that branch of the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Nardelli, Sweeny, DeGrasse, Freedman, JJ.
Plaintiff alleges that she was assigned to grade a Regents examination in math, that she observed other teachers improperly grading the exam with No. 2 pencils instead of red pencils or red pens, and that after reporting this violation of grading procedures to the appropriate officials, DOE wrongfully retaliated against her by, inter alia, giving her unsatisfactory evaluations ratings and instituting disciplinary proceedings falsely alleging, inter alia, incompetence. A prior article 78 proceeding challenging the unsatisfactory ratings as false and retaliatory was dismissed on a finding that the ratings were not arbitrary and capricious (Batyreva v New York City Dept. of Educ., 50 AD3d 283 ). With respect to plaintiff's present claim for retaliation in violation of Civil Service Law § 75 and § 75-b, the motion court dismissed the claim, and plaintiff does not appeal. With respect to plaintiff's present claim that the ratings and disciplinary proceedings were in retaliation for her exercise of free speech, in violation of 42 USC § 1983, the motion court found that the complaint sufficiently alleges that the grading procedures are a matter of public concern, and that because the complaint does not allege that plaintiff "was in a supervisory position or that it [was] part of her official responsibilities to report any suspected or real diversions from proper grading procedures," it sufficiently alleges that plaintiff was "speaking as a citizen and not in her official capacity as a public employee." Accordingly, the motion court sustained the section 1983 claim (citing Garcetti v Ceballos, 547 US 410 ). This was error. The prior article 78 proceeding estops her from asserting that the unsatisfactory ratings and disciplinary proceeding were retaliatory violations of her right to free speech (see Wilkie v Robbins, __ US __, 127 S Ct 2588, 2602  [proof that the [retaliatory] action was independently justified on grounds other than the improper one defeats the claim]; see generally Smith v Russell Sage Coll., 54 NY2d 185, 192-193 ). We have considered plaintiff's other arguments and claims and find them without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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