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In Re Deborah Sagal-Cotler v. Board of Education of City School District of the City of New York

June 5, 2012

IN RE DEBORAH SAGAL-COTLER, PETITIONER-RESPONDENT, --
v.
BOARD OF EDUCATION OF CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, ET AL., RESPONDENTS-APPELLANTS.



Matter of Matter of Sagal-Cotler v Board of Educ. of City School Dist. of the City of N.Y.

Decided on June 5, 2012

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., Sweeny, Moskowitz, Freedman, Manzanet-Daniels, JJ.

Order and judgment (one paper), Supreme Court, New York County (Carol E. Huff, J.), entered October 7, 2010, which, among other things, granted the petition seeking a judgment declaring that respondents' denial of legal representation and indemnification of expenses petitioner incurred in defense of a civil action was arbitrary and capricious and contrary to law, and directed respondents to provide petitioner with legal representation and reimburse her for all reasonable legal fees incurred in defense of the action, reversed, on the law, without costs, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed.

Contrary to Supreme Court's determination and the dissent's position, Education Law § 2560, which incorporates by reference General Municipal Law § 50-k, and Education Law § 3028 are not irreconcilable, but rather can and should be read together and "applied harmoniously and consistently" (Alweis v Evans, 69 NY2d 199, 204 [1987]). "It is the duty of the courts to so construe two statutes that they will be in harmony, if that can be done without violating the established canons of statutory interpretation" (McKinney's Cons Laws of NY, Book 1, Statutes § 398).

It is a fundamental rule of statutory construction that a court, "in interpreting a statute, should attempt to effectuate the intent of the Legislature" (Patrolmen's Benevolent Assn. Of City of N.Y. v City of New York, 41 NY2d 205, 208 [1976]). The plain meaning of the statutory language is " the clearest indicator of legislative intent'" (Matter of Smith v Donovan, 61 AD3d 505, 508 [2009], quoting Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998], lv denied 13 NY3d 712 [2009]).

Both Education Law §§ 3028 and 2560 provide for the legal representation and indemnification of board of education employees. However, they each set forth different circumstances under which such representation and indemnification are to be provided.

Education Law § 3028 provides entitlement to representation and indemnification for any civil or criminal suit filed against a board of education employee "arising out of disciplinary action" that the employee has taken against a student "while in the discharge of his [or her] duties within the scope of his [or her] employment."

Education Law § 2560(1), as amended in 1979, provides for representation and indemnification for board of education employees in a city having a population of one million or more "pursuant to the provisions of, and subject to the conditions, procedures and limitations contained in section fifty-k of the general municipal law."

General Municipal Law § 50-k(2) and (3) provide a uniform standard for legal representation and indemnification of employees of the City of New York. Such representation and indemnification shall be provided for acts or omissions that the Corporation Counsel determines "occurred while the employee was acting within the scope of his [or her] public employment and in the discharge of his [or her] duties and was not in violation of any rule or regulation of his [or her] agency at the time the alleged act or omission occurred."

When read together, it is clear that, pursuant to Education Law § 3028, a board of education must provide legal representation and pay attorney's fees and expenses incurred in the defense of an employee in any action arising out of a disciplinary action taken against a student by an employee while acting in the scope of his or her employment and in the discharge of his or her duties, unless, pursuant to Education Law § 2560(1), the employee is a member of a board of education in a city having a population of one million or more, and, pursuant to General Municipal Law § 50-k, he or she violated any rule or regulation of the agency (see Thomas v New York City Dept. of Educ., __ AD3d __ [2012], decided simultaneously herewith; Matter of Zampieron v Board of Educ. of the City School Dist. of the City of N.Y., 30 Misc 3d 1210[A], 2010 NY Slip Op 52338[U], *8 [2010]).

Here, because petitioner was a paraprofessional employed by respondent Board of Education of the City of New York (now known as New York City Department of Education [DOE]), Education Law § 2560(1) applies. Therefore, in order to obtain legal representation and indemnification pursuant to the statute, petitioner must meet three requirements: (1) she must be acting in the scope of her employment, (2) in the discharge of her duties, and (3) not be in violation of any rule or regulation of the DOE. Here, petitioner's admitted act of hitting a student in the face when he refused to accompany her to the school cafeteria violated a DOE regulation (Chancellor's Regulation A-420) as well as a statewide rule prohibiting corporal punishment (see 8 NYCRR 19.5[a][1]), and therefore was not undertaken in the discharge of her duties, whether as an act of discipline or otherwise (cf. Blood v Board of Educ. of City of N.Y., 121 AD2d 128 [1986]). Indeed, petitioner admitted in a letter that she "lost it" and hit the student, for which she received a 10-day suspension without pay.

The dissent's reliance on our decision in Blood v Board of Educ. of City of N.Y. (121 AD2d 128 [1986], supra) to support its contention that petitioner was acting within the discharge of her duties is misplaced. The facts here present a far different situation from Blood, where a teacher, who had become angry at a student, grabbed and carelessly swung the child's book bag and accidently struck another student in the eye. Notably, in Blood, the teacher's conduct in striking the other student was clearly accidental, and no ...


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