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Vassilev v. City of New York

United States District Court, S.D. New York

August 12, 2014



PAUL A. CROTTY, District Judge.

Plaintiff Anton Vassilev ("Vassilev"), a public school teacher at Intermediate School 291 ("IS 291") who was terminated from that position in 2010, sues the City of New York ("City"), the New York City Department of Education ("DOE"), and former DOE Chancellor Dennis Walcott[1] (collectively, "Defendants"). Vassilev claims that he was tenured and, accordingly, his termination without a pre-termination hearing amounted to a deprivation of a property right. (Compl. ¶¶ 23, 30-31.) The principal who rated Vassilev "Unsatisfactory" is now deceased (Pl. Opp. Br. at 2), and Vassilev claims the rating was unfounded. ( Id. ¶¶ 27, 36.) His termination has prevented him from being hired as a teacher elsewhere, causing him monetary losses, mental and physical anguish, humiliation, and damage to his professional reputation. ( Id. ¶¶ 24, 26-27, 36.) Accordingly, Vassilev alleges federal claims for violation of his due process rights pursuant to 42 U.S.C. § 1983, and state law claims of prima facie tort, breach of contract, tortious interference, intentional and negligent infliction of emotional distress, and fraud.

Defendants move to dismiss Plaintiff's 42 U.S.C. § 1983 claim under the doctrine of collateral estoppel since Plaintiff was afforded the opportunity to litigate the relevant issues in his Article 78 proceeding. (Defs.' Supp. Mem. at 5-6.) Defendants also argue that Plaintiff has failed to state a due process claim, since Plaintiff received all the process he was owed, i.e., a post-deprivation hearing. ( Id. at 6-8.) Defendants argue that Plaintiff's' state law claims are time-barred because they were not brought within one year of his termination ( Id. at 8.), and fail to state a claim upon which relief may be granted. Finally, Defendants insist that the City should be dismissed as an improper party. ( Id. at 15).

For the reasons that follow, the Court grants Defendants' motion to dismiss the claims against the City of New York and Plaintiff's state law claims. Plaintiff's § 1983 procedural due process claim against the remaining defendants survives.


The current action was filed on July 2, 2013 in New York Supreme Court, [2] and was removed to this Court on August 1, 2013. ( See Notice of Removal, Dkt. No. 1.) Plaintiff was terminated from his employment as a teacher at IS 291 in 2010. (Compl. ¶ 2.) Plaintiff alleges that at the time of his termination he was a tenured teacher, which makes his termination tantamount to deprivation of a property right. ( Id. ¶¶ 23, 30-31.)

Plaintiff was hired as a probationary teacher in September 2006. ( Id. ¶ 7.) Plaintiff received "Satisfactory" ratings from the school's principal, Sean Walsh, in each of Plaintiff's first three years teaching at IS 291 (2006-2009). ( Id. ¶ 9.) Plaintiff admits that he was never formally granted tenure, but claims tenure by estoppel as of the end of the 2008-2009 school year, based on having three consecutive years of"Satisfactory" ratings. ( Id. ¶ 10.) Defendants point to an Extension of Probation Agreement that appears to be signed by Plaintiff. If valid, the agreement would vitiate Plaintiff's claim of having tenure status; but Plaintiff alleges that he never signed such an agreement and suggests that it was forged. ( Id. ¶¶ 10, 16-18.) Somewhat inconsistent with Plaintiff's argument that he had already received tenure by estoppel, Plaintiff alleges that during the 2009-2010 school year, Assistant Principal Noel Moses observed Plaintiff's teaching on two occasions and rated him as "Satisfactory" each time. ( Id. ¶ 11.)

At the end of the 2009-2010 school year, the now-deceased Principal Walsh rated Plaintiff"Unsatisfactory" for the entire year. ( Id. ¶ 12.) Plaintiff was terminated by a letter dated July 9, 2010. ( Id. ¶ 13.) Plaintiff soon thereafter filed a discontinuance/U rating appeal with the DOE's Office of Appeals and Review ("OAR"). ( Id. ¶ 13.) The OAR held a hearing nearly two years later in March 2012. ( Id. ¶ 14.) Eventually, on December 12, 2013, the OAR denied Plaintiff's appeal and sustained, in a one-sentence decision, the rating of "Unsatisfactory" that led to his termination. (Pl.'s Opp'n Memo, Ex. A.)

During the pendency of OAR's decision, Plaintiff filed an Article 78 Petition in New York County Supreme Court to, inter alia, compel the OAR to issue a decision, challenge the DOE's determinations regarding his termination, and mandate his reinstatement nunc pro tunc with backpay and lost benefits. See Vassilev v. City of New York, No. 100526/13, 2013 slip op. 31788(U) (N.Y. Sup. Ct. Aug. 2, 2013). The state court compelled OAR to decide whether Vassilev's "Unsatisfactory" rating should be sustained, but dismissed the remainder of Plaintiff's challenges in the Article 78 petition on the grounds that (1) the City was an improper party; (2) the challenge to his termination (which hinged on whether he had tenured status) was time-barred under the four-month statute of limitations for commencing Article 78 proceedings; and (3) Plaintiff's challenge to his "Unsatisfactory" rating was premature because Plaintiff had not yet received OAR's determination on the matter. Id. at 3-6.


I. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint if a plaintiff fails to "provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff's must allege "enough facts to state a claim to relief that is plausible on its face.'" Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court must accept as true all well-pleaded factual allegations and draw all inferences in a plaintiff's favor. See Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). Allegations that are merely conclusory, however, are "not entitled to be assumed true." Iqbal, 556 U.S. at 680.

II. Analysis

A. Claims Against the City ...

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