In the Matter of the Application of Danielle Kushner, Petitioner, For a Judgment Pursuant to Article 78 of the C.P.L.R.
Carmen Farina, Chancellor, New York City Department of Education, and NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents.
Petitioner Peter E. Brill Esq. Brill Legal Group.
Respondents Kurt Rose, Assistant Corporation Counsel.
formerly a special education teacher at respondent New York
City Department of Education's Richmond Hill High School,
seeks reinstatement to her former position with tenure and an
annulment of respondents' rating of her performance as
"ineffective" for the 2014-15 school year.
UNDISPUTED BACKGROUND FACTS
began teaching special education as a permanent substitute in
the Patchogue-Medford School District in the 2011-12 school
year. In September 2012, respondent New York City Department
of Education (DOE) hired petitioner to teach special
education at the Richmond Hill High School, with a
probationary period of three years. Petitioner received a
"satisfactory" rating for the 2012-13 year, V. Pet.
Ex. 1, at 1; V. Answer Ex. A, at 2, and an
"effective" rating for the 2013-14 year. V. Pet.
Ex. 1, at 2; V. Answer Ex. A, at 2. During these years,
petitioner raised concerns with her union and at staff
meetings about students' nonreceipt of mandated special
beginning of the 2014-15 school year, petitioner submitted an
"Application for Reduction of Probationary Service,
" based on her prior service as a permanent substitute
teacher. V. Pet. Ex. 5, at 1; V. Answer Ex. BB, at 2. Section
1 of the application, titled "Jarema Credit, "
allowed petitioner to request credit for any prior substitute
teaching service that was under supervision, consisted of
more than 80 days of service in any 90 consecutive school
days in the same school, and totaled at least 160 days of
actual service during a school year. V. Pet. Ex. 5, at 1; V.
Answer Ex. BB, at 2. Under Section 1, petitioner requested
that DOE reduce her probationary period one year based on her
180 days of service as a permanent substitute teacher in the
Patchogue-Medford School District during the 2011-12 school
issued a written denial dated November 6, 2014, of
petitioner's request, because her service was not in the
New York City public schools. V. Answer Ex. BB, at 1.
Petitioner denies receiving this written denial and alleges
that she did not learn of the denial until after respondents
discontinued her employment in August 2015. V. Pet. ¶
35, Ex. 8.
the 2014-15 school year, petitioner received
"ineffective" ratings on all four required
observations of her performance, V. Answer Exs. E, J, N, and
P, as well as an "ineffective" rating for the
2014-15 school year. V. Pet. Ex. 7. In June 2015, DOE denied
petitioner tenure and discontinued her employment effective
August 12, 2015. Id. Ex. 8. Petitioner then lost a
position teaching special education at another New York City
high school for the 2015-16 year, see id. Ex. 10,
because respondents erroneously had recorded petitioner's
previous employment as "terminated" instead of
"discontinued" and failed to correct the error.
Id. ¶ 33.
26, 2015, petitioner filed an improper practice charge with
the Public Employment Relations Board (PERB), NY Civ. Serv.
Law § 209-a(1), alleging that respondents rated her
"ineffective" and discontinued her employment in
retaliation for her complaints about issues in Richmond Hill
High School's special education department. V. Answer Ex.
U. On February 12, 2016, after petitioner commenced this
proceeding, an administrative law judge dismissed
petitioner's PERB complaint, holding that
respondents' ratings were based solely on her performance
and were not in retaliation for her complaints, because the
administrators evaluating petitioner had no knowledge of her
complaints. Kushner v. Board of Educ. of City School
Dist. of City of NY, 45 PERB ¶ 4515, 2016 WL
1169294 (Feb. 12, 2016).
October 8, 2015, petitioner challenged the
"ineffective" rating and discontinuance pursuant to
New York Education Law § 3012-c, claiming respondents
arbitrarily rated her "ineffective" for the 2014-15
school year, in retaliation for her complaints about special
education issues. V. Answer Ex. W. On March 10, 2016, an
arbitration panel held that petitioner's
"ineffective" rating for the 2014-15 year was due
solely to her performance and not in retaliation for her
complaints. United Fedn. of Teachers, Local 2, AFT,
AFL-CIO v. New York City Dept. of Educ., Op. & Award
(Mar. 10, 2016) (Gavin, Arb.).
APPLICATION OF THE STATUTE OF LIMITATIONS TO THIS
commenced this proceeding November 30, 2015, to annul
respondents' determination discontinuing her employment
and denying her tenure and their "ineffective"
rating of her performance for the 2014-15 school year.
Insofar as petitioner challenges DOE's denial of her
application for reduction of her probationary period, the
applicable statute of limitations, C.P.L.R. 217(1), required
her to commence the proceeding within four months after her
receipt of DOE's denial. Banos v. Rhea, 25
N.Y.3d 266, 280 (2015); Kahn v. New York City Dept. of
Educ., 18 N.Y.3d 457, 462 (2012); Yarbough v.
Franco, 95 N.Y.2d 342, 346 (2000); King v.
Department of Educ. of City of NY, 128 A.D.3d 443, 444
(1st Dep't 2015). Respondents maintain that the statute
of limitations bars petitioner from claiming any entitlement
to a reduction of her probationary period because she failed
to challenge their determination dated November 6, 2014,
denying her application for that reduction within four
respondents maintain this defense, they bear the burden to
show that they provided petitioner notice of their denial of
her application more than four months before November 30,
2015. LaSonde v. Seabrook, 89 A.D.3d 132, 139 (1st
Dep't 2011); Vadell v. City of New York Health and
Hosps. Corp., 233 A.D.2d 224, 225 (1st Dep't 1996);
Hilburg v. New York State Dept. of Transp., 138
A.D.3d 1062, 1063-64 (2d Dep't 2016). Respondents must
show that they mailed the determination to petitioner via
their regular mailing procedures or that petitioner received
actual notice of the determination. California Suites,
Inc. v. Russo Demolition Inc., 98 A.D.3d 144, 152 (1st