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In Re Grace Colon v. the City of New York Department of Education

New York Supreme and/or Appellate Courts Appellate Division, First Department


April 17, 2012

IN RE GRACE COLON, PETITIONER-APPELLANT,
v.
THE CITY OF NEW YORK DEPARTMENT OF EDUCATION, ET AL.,
RESPONDENTS-RESPONDENTS.

Matter of Matter of Colon v City of New York Dept. of Educ.

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.

Decided on April 17, 2012

Andrias, J.P., Friedman, Moskowitz, Freedman, Manzanet-Daniels, JJ.

Judgment, Supreme Court, New York County (Saliann Scarpulla, J.), entered November 29, 2010, denying the petition to vacate an arbitration award dated December 7, 2009, and dismissing the proceeding brought pursuant to Education Law § 3020-a and CPLR 7511, unanimously affirmed, without costs.

The arbitration award was made in accord with due process, is supported by adequate evidence, and is rational and not arbitrary and capricious (see City School Dist. of the City of N.Y. v McGraham, 75 AD3d 445, 450 [2010], affd 17 NY3d 917 [2011]). Contrary to petitioner's contention, "[h]earsay evidence can be the basis of an administrative determination" (Matter of Gray v Adduci, 73 NY2d 741 [1988]). Each of the specifications pertaining to the incidents involving students was supported not only by consistent, albeit unsworn, statements by several students who witnessed the incidents, but also by testimony from either the school principal or the school psychologist, or both, who investigated the incidents, including consulting with the students involved. In her own testimony, petitioner generally acknowledged the incidents, while offering differing exculpatory accounts thereof. The hearing officer's credibility findings in favor of respondents' witnesses are entitled to deference (see Matter of Douglas v New York City Bd./Dept. of Educ., 87 AD3d 856 [2011]). We note particularly that petitioner's accounts of the incidents were uncorroborated. The testimony of respondents' witnesses supports the hearing officer's determinations as to the remaining specifications.

We do not find the penalty of termination so disproportionate to the multiple specifications upheld charging petitioner with verbal and physical abuse of students and faculty members as to shock our sense of fairness, even considering the mitigating factors of petitioner's recurrent health issues and the recent death of her mother (see Matter of Kaufman v Wells, 56 AD3d 674 [2008], lv denied 13 NY3d 707 [2009]).

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 17, 2012

CLERK

20120417

© 1992-2012 VersusLaw Inc.



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