Employer’s termination of probationary employee overturned after its repeated failure to appear before the court

Employer’s termination of probationary employee overturned after its repeated failure to appear before the court

2013 NY Slip Op 05207, Appellate Division, Second Department

The petitioner [Educator] in this action was appointed as a probationary assistant principal at a New York City Department of Education [DOE] middle school. Prior to the end of the Educator’s probationary period the middle school principal informed Educator that DOE intended to discontinue her employment based on an unsatisfactory rating. 

Educator filed a timely Civil Practice Law and Rules Article 78 petition challenging DOE’s determination.

DOE moved to dismiss Educator’s petition for “failure to state a cause of action” 

However when DOE failed to appear before Supreme Court on the return date of its motion, the court granted Educator’s petition and, in effect, denied DOE’s motion.

DOE then filed a motion asking Supreme Court to vacate its order but when DOE failed to answer the “call of the calendar” on the return date of its motion to vacate the earlier order of Supreme Court, the court denied the motion in an order that directed DOE to appear for a contempt hearing.

Ultimately Supreme Court did not hold DOE in contempt and DOE again moved again to vacate the court’s order that, in effect, had granted Educator’s petition.

DOE, however, again failed to appear on the return date of its “renewed” motion and Supreme Court, upon DOE’s default, issued an order dated January 14, 2010 that, in effect, reinstated its initial decision granting Educator’s petition.

DOE yet again asked the court to dismiss Educator’s petition, which motion Supreme Court granted.

Educator appealed and the Appellate Division agreed with her argument that Supreme Court erred in granting DOE’s motion to vacate the court’s initial order, dated May 30, 2006, as it was untimely, having been made more than one year after DOE received actual notice of the order.

In the words of the Appellate Division, this convoluted series of events developed as follows:

1. In a proceeding pursuant to CPLR Article 78 to review a determination of the New York City Department of Education [DOE] made in 2006 discontinuing the Educator's probationary service as an assistant principal,
2. the Educator appeals, as limited by her brief, from so much of an order and judgment (one paper) of the Supreme Court, Kings County dated August 2, 2011,
3. as granted the motion of the DOE, in effect, pursuant to CPLR 5015(a)(1), (a) 3. to vacate an order of the same court dated January 14, 2010,
4. entered upon DOE’s failure to appear on the return date,
5. denying DOE’s motion to vacate an order of the same court, dated May 30, 2006, 
6. also entered upon DOE’s failure to appear on the return date, granting the petition and, in effect,
7. denying that branch of DOE’s motion which was to dismiss the petition pursuant to CPLR 3211(a)(7), and (b) to vacate the order dated May 30, 2006,
8. thereupon granted that branch of DOE’s motion which was to dismiss the petition pursuant to CPLR 3211(a)(7), and, in effect, 
9. dismissed the proceeding brought by Educator

The bottom line: the Appellate Division remitted the matter to the Supreme Court for the entry of a judgment in favor of Educator and against DOE, granting Educator’s petition

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05207.htm