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Esteban v. Department of Educ. of City School Dist. of City of New York

Supreme Court of New York, New York County

September 16, 2013

In the Matter of Damian ESTEBAN, Petitioner, For a Judgment Pursuant to Article 75 of the Civil Practice Law and Rules
v.
The DEPARTMENT OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK, Respondents. No. 651904/13.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Eisner & Mirer, P.C. by Eugene G. Eisner, Esq., New York City, attorneys for petitioner.

Corporation Counsel of the City of New York by Daniel LaRose, Esq ., Julie Nociolo, Summer Intern on the brief, New York City, attorneys for respondent.

MANUEL J. MENDEZ, J.

Upon a reading of the foregoing cited papers, it is ordered and adjudged that the petition, seeking to vacate, and set aside the arbitrator's decision pursuant to CPLR § 7511, and Education Law § 3020-a [5], is granted. The cross-motion made in lieu of an answer, seeking to dismiss the petition pursuant to CPLR § 404[a], CPLR § 3211[a][7], and CPLR § 7511, is denied.

Petitioner is a tenured teacher since 2010 teaching at the Williamsburg High School for Architecture. He has an unblemished record as a teacher and has never been the subject of discipline during his employment with Respondent. On October 17, 2012 Petitioner was arrested and charged with Misdemeanor possession of heroin; which was found when he was searched while entering the Criminal Court building at 100 Centre Street, where he was serving as a juror in a criminal trial. At arraignment he was given an Adjournment in Contemplation of Dismissal (ACD) under section 170.55 of the Criminal Procedure Law (CPL) on condition that he complete one day of community service with the Treatment Readiness Program. He completed the program in November of 2012 and six months after his arrest on April 17, 2013 the charges were dismissed and the record sealed. (See Cross-motion Exhibit C).

Petitioner's was the subject of newspaper articles that appeared one each in the New York Post, the Daily News and the New York Times, which was the only news generated by Petitioner's arrest. The New York Times article was written on October 17, 2012, the day of his arrest; the New York Post and Daily News Articles were written on October 18, 2012 and made reference to his receiving an ACD on condition that he complete a one day Treatment Readiness program. (See Cross-motion Exhibit C).

Respondent brought disciplinary charges against Petitioner, charging him with five (5) specifications to wit:

Specification 1— on or about October 17, 2012 he entered 100 Centre Street while in possession of approximately 20 glassines of a controlled substance, namely heroin.

Specification 2— on or about October 17, 2012 he was removed as a juror in a murder trial that started on October 9, 2012.

Specification 3— on or about October 17, 2012 he violated chancellor's regulation C-105 when he:

a) failed to report his arrest for possession of a controlled substance in the seventh degree.
b) failed to provide a copy of the criminal complaint issued against ...

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