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February 21, 2019

Challenging the credibility of the witness

Challenging the credibility of the witness
Ghastin v New York City Dept. of Educ., 2019 NY Slip Op 01152, Appellate Division, First Department

The Plaintiff in this action asked Supreme Court to vacate an Education Law §3020-a arbitrator's award that found the individual guilty of certain disciplinary charges and imposed a penalty of suspension without pay for four weeks. Supreme Court granted the New York City Department of Education's motion to dismiss Plaintiff's petition and Plaintiff appealed. 

The Appellate Division sustained the lower court's ruling.

Plaintiff had objected to the hearing officer's "credibility determinations" with respect to the testimony of the Department's witnesses at the hearing. The Appellate Division said that the fact that the hearing officer found the testimony of the Department's witnesses more credible than Plaintiff's testimony does not serve to demonstrate that the hearing officer's determination was arbitrary and capricious.*

As to the penalty imposed by the hearing officer, the court observed that Plaintiff  failed to demonstrate how a four-week suspension without pay is so shockingly disproportionate to the offenses involved that it constitutes an abuse of discretion "given her proven misconduct which could have resulted in violence."

Noting that the Plaintiff had some 19 years of service at the time of the hearing with no known disciplinary record before the incident, the Appellate Division said that the record shows that Plaintiff failed to acknowledge the gravity of her misconduct, continued to deny any wrongdoing and showed a lack of remorse for her actions.

Another issue raised by Plaintiff: Did the hearing officer have jurisdiction to decide the matter. However, Plaintiff first raised this issue in the petition filed in Supreme Court. The Appellate Division, citing Matter of DeMartino v New York City Department of Transportation, 67 AD3d 479 said that raising the question of the jurisdiction of the hearing officer was of "no moment" as Petitioner is deemed to have "waived the issue" when it was not raised in the course of the arbitration.

* The Appellate Division described the testimony of the Department's witnesses as "interlocking and closely corroborating".

The decision is posted on the Internet at:

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