September 28, 2010

CPLR Article 75 petitioner has the burden of demonstrating the arbitrator’s alleged misconduct, bias, excess of power, or procedural defects

CPLR Article 75 petitioner has the burden of demonstrating the arbitrator’s alleged misconduct, bias, excess of power, or procedural defects
Matter of Blythe v New York City Bd./Dept. of Educ. 2010 NY Slip Op 32592(U) September 20, 2010, Sup Ct, NY County, Judge Cynthia S. Kern [Not selected for publication in the Official Reports]

Kathryn Blythe, a New York City schoolteacher, filed a petition pursuant to Article 75 of the Civil Practice Law and Rules [CPLR] seeking to vacate the opinion and award issued pursuant to Education Law 3020-a by Hearing Officer Arthur Riegel, Esq. The hearing officer had found Blythe guilty of certain charges filed against her* and imposed the penalty of suspension without pay until the end of the 2010-2011 school year.

Blythe argued that Riegel’s award should be vacated on the basis that he committed misconduct, bias and fraud.

Judge Kern, noting that Education Law §3020-a(5) provides that judicial review of a hearing officer’s findings must be conducted pursuant to CPLR 7511, said that such an award may be vacated only upon a showing of "misconduct, bias, excess of power or procedural defects," citing Lackow v Dept. of Education of the City of New York, 51 A.D.3d 563.

Here, said the court, “judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration. The determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78. The party challenging an arbitration determination has the burden of showing its invalidity.”

Holding that Blythe failed to provide any evidence demonstrating misconduct, bias, the exercise of "excess of power," or procedural defects, Judge Kern ruled that “Hearing Officer Riegel’s decision was rational and supported by adequate evidence.”

As to Blythe’s complaint that her due process rights were violated because the New York City Board of Education did not vote on the charges filed against her, Judge Kern ruled that her argument was “without merit” as “Education Law §2590-f( l)(c) … applicable only to the New York City school district … specifically grants community superintendents authority to appoint and discharge all employees.”

Denying Blythe’s request for relief under CPLR Article 75, Judge Kern dismissed Blythe’s petition “in its entirety.”

* Judge Kern said that "Hearing Officer Riegel based his penalty on his finding, after fully considering all of the evidence and arguments presented, that petitioner was excessively absent, had left her students unsupervised in the hallway and in the classroom and had violated Chancellor’s regulation A420 against corporal punishment" but had dismissed all other charges that had been filed against her.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32592.pdf
.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.