Declining to pursue a grievance submitted by an individual in the relevant collective bargaining unit

In Flowers v District Council 37, 2025 NY Slip Opinion 02720, the Appellate Division, First Department, opined that an employee organization's decision not to pursue a grievance submitted by an individual in the collective bargaining unit it represents as the employee organization's "mere refusal ... to proceed with [the] grievance does not in itself establish a breach of the duty of fair representation".

The Appellate Division's decision is set out below.  

Flowers v District Council 37

2025 NY Slip Op 02720

Decided on May 06, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 06, 2025
Before: Webber, J.P., Scarpulla, Mendez, Rodriguez, Pitt-Burke, JJ.

Index No. 161683/13|Appeal No. 4284|Case No. 2023-05339|

[*1]Swayne Flowers, Plaintiff-Appellant,

v

District Council 37, et al., Defendants-Respondents.

Law Offices of Sandra D. Parker, New York (Sandra D. Parker of counsel), for appellant.

Robin Roach, New York (Terry Buck of counsel), for District Council 37, AFSCME, AFL-CIO, respondent.

Muriel Goode-Trufant, Corporation Counsel, New York (Melanie T. West of counsel), for New York City Health + Hospitals Corporation, respondent.

Order, Supreme Court, New York County (Judy H. Kim, J.), entered September 26, 2023, which granted the motions of defendants District Council 37 AFSCME, AFL-CIO (DC 37) and New York City Health and Hospitals Corporation (H+H) for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The court properly dismissed plaintiff's claims against DC 37, an unincorporated association, because plaintiff failed to plead and prove that the union's "entire membership authorized and later ratified [the union's] actions," as required by the Martin rule (Dowlah v American Arbitration Assn., 221 AD3d 426, 427 [1st Dept 2023], lv denied 41 NY3d 910 [2024]; see Palladino v CNY Centro, Inc., 23 NY3d 140, 146 [2014]; Martin v Curran, 303 NY 276, 280 [1951];General Associations Law § 13). Plaintiff failed to raise an issue of fact as to DC 37's unincorporated status, which was not a matter solely within the union's knowledge.

DC 37 did not waive its right to assert the Martin rule at summary judgment by failing to raise it as an affirmative defense. The Martin rule establishes "pleading and evidence requirements" for plaintiff to satisfy to "maintain[] [this] action" (Salemeh v Toussaint, 25 AD3d 411, 411 [1st Dept 2006]). DC 37's asserted defense that the "[c]omplaint fails to state a claim against [DC 37] upon which relief may be granted" encompassed DC 37's later argument that plaintiff failed to meet his burdens, including under the Martin rule (see Morton v Mulgrew, 144 AD3d 447, 448 [1st Dept 2016]; Salemeh, 25 AD3d at 411-412).

The court also properly dismissed plaintiff's breach of contract claim against his employer, H+H, because his employment was subject to a collective bargaining agreement (CBA) that contained a grievance procedure. "[O]nly when the union fails in its duty of fair representation can the employee go beyond the agreed procedure and litigate a contract issue directly against the employer" (Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501, 508 [1987], cert denied sub nom. Margolin v Board of Educ., Commack Union Free Sch. Dist., 485 US 1034 [1988]).

Plaintiff failed to raise an issue of fact as to DC 37's fair representation of him. Evidence that plaintiff's union representative promised to work on plaintiff's complaints but then ignored his communications and failed to attend meetings does not suggest that the union's "activity . . . was deliberately invidious, arbitrary or founded in bad faith" (Matter of Sapadin v Board of Educ. of City of N.Y., 246 AD2d 359, 360 [1st Dept 1998] [internal quotation marks omitted]). The president of plaintiff's local expressly notified plaintiff of the union's decision not to pursue his grievance, and its "mere refusal . . . to proceed with [his] grievance does not in itself establish a breach of the duty of fair representation" (id. at 359). The CBA provision permitting plaintiff to pursue grievances on his own, as well as his deposition testimony [*2]that he had previously done so, undermine his assertion that he was never made aware that he had that right.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 6, 2025

New York State Comptroller Thomas P. DiNapoli Releases Audits

 On April 30, 2025, New York State Comptroller Thomas P. DiNapoli announced the following audits of state departments and agencies have been issued.

Click on the text highlighted in color to access the complete audit

Department of Motor Vehicles – Language Access Services (Follow-Up) (2024-F-33)

New York State Executive Law expanded the State’s language access policy requiring translation of vital documents into the 12 most common non-English languages and Executive agencies to publish a Language Access Plan (Plan) to ensure meaningful access to services for Limited English Proficiency New Yorkers. The Department of Motor Vehicles (DMV), one of the agencies required to develop and follow a Plan, operates 31 public-facing offices and 100 public-facing office locations operated by the County Clerks (County DMVs). A prior audit, issued in October 2023, found that some offices were not using Language Line for interpretation services, as required by the Plan. Auditors also determined that, due to gaps in the law, DMV did not have sufficient authority to enforce its language access policies at County DMVs despite these offices accounting for over 75% of the total customer-facing DMV offices. DMV officials made some progress in addressing the five recommendations in the initial audit report, implementing two and partially implementing three.

New York City Department of Transportation – Street Construction-Related Permits (Follow-Up) (2024-F-20)

The New York City Department of Transportation’s (DOT) issues 150 different types of sidewalk and roadway construction permits. A prior audit, issued in June 2022, found that DOT did not perform all required inspections, did not set a time frame for inspectors to return to reinspect after issuance of Corrective Action Requests or Notices of Immediate Corrective Action, and did not ensure that applicants complied with registration and permit application requirements. DOT officials made some progress in addressing the initial report’s nine recommendations, implementing two, partially implementing six, and not implementing one.

Metropolitan Transportation Authority – Management and Maintenance of Non-Revenue Service Vehicles (Follow-Up) (2024-F-16)

Under the Metropolitan Transportation Authority (MTA), New York City Transit (Transit) is responsible for operating the subways and most of the public bus service throughout New York City, and MTA Bus Company (MTA Bus) provides bus service in portions of the Bronx, Queens, and Brooklyn, and express routes from those boroughs to Manhattan. Transit and MTA Bus are responsible for the acquisition, maintenance, disposition, and preventive maintenance of the non-revenue service vehicles in their fleet. A prior audit, issued in January 2023, found that Transit and MTA Bus did not always adhere to their own guidance or practice to provide annual service and service based on mileage intervals as part of preventive maintenance on their vehicles. The MTA made some progress in addressing the 11 recommendations in the initial audit report, implementing four, partially implementing two, and not implementing five.

Empire State Development – Oversight of Select High-Technology Projects (Follow-Up) (2024-F-19)

Empire State Development (ESD) is the chief agency responsible for the coordination of the State’s economic development programs. ESD supports high-technology (high-tech) sectors—highly valued targets of economic development—by providing loans and grants and administering tax credit programs. A prior audit, issued in August 2020, found that, while ESD had effective practices for monitoring specific programs, it had not adequately monitored other high-tech projects within the SUNY Polytechnic and/or Buffalo Billion portfolio to ensure that taxpayer money was effectively spent and was producing the intended results. Despite millions of dollars of State funding, selected high-tech projects had yet to create the expected number of jobs. ESD officials made progress in addressing the initial report’s three recommendations, implementing one and partially implementing two.

Hudson River–Black River Regulating District – Security Over Critical Systems (Follow-Up) (2025-F-5)

The Hudson River–Black River Regulating District (HRBRRD) is a New York State public benefit corporation that regulates the flow of streams or rivers when required by public welfare. HRBRRD must adhere to the Office of Information Technology Services’ (ITS) policies, including ITS’ Information Security Policy and Acceptable Use Policy, for its IT assets and abide by Payment Card Industry Data Security Standards (PCI DSS). A prior audit, issued in January 2024, found that HRBRRD could improve in some areas to better meet PCI DSS requirements, including documenting certain policies and procedures. HRBRRD officials made significant progress in addressing the issue identified in the initial audit report, implementing the one recommendation from the initial report.

Proposed Supplemental Military Leave Benefits [I.D. No. CVS-18-25-00006-P]

On May 7, 2025, the State Register reported that "notice has been given of the following proposed rule":

Proposed Action: This is a consensus rule making* to amend sections 21.15 and 28-1.17 of Title 4 NYCRR. 

Purpose: To extend the availability of supplemental military leave benefits for certain New York State employees until December 31, 2025. The full text of the proposed rule is posted at the following State website:

 https://www.cs.ny.gov/commission/calendars/April25cal-web.pdf

The proposed rule amends sections 21.15 and 28-1.17 of the Attendance Rules for Employees in New York State Departments and Institutions to continue the availability of the single grant of supplemental military leave with pay and further leave at reduced pay through December 31, 2025, and to provide for separate grants of the greater of 22 working days or 30 calendar days of training leave at reduced pay during calendar year 2025.

Union represented employees already receive these benefits pursuant to memoranda of understanding (MOUs) negotiated with the Governor’s Office of Employee Relations (GOER). The proposed rule merely amends section 21.15 of the Attendance Rules consistent with the current MOUs, and amends section 28-1.17 to extend equivalent benefits to employees serving in positions designated managerial or confidential (m/c). 

Under current statute, section 242 of the New York State Military Law provides that public officers and employees who are members of the organized militia or any reserve force or reserve component of the armed forces of the United States may receive the greater of 22 working days or 30 calendar days of leave with pay to perform ordered military duty in the service of New York State or the United States during each calendar year or any continuous period of absence.

Text of proposed rule and any required statements and analyses may be obtained from: Jennifer Paul, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email address: commops@cs.ny.gov

Data, views or arguments may be submitted to: Eugene Sarfoh,  Counsel, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY12239, (518)473-2624, email: public.comments@cs.ny.gov

Public comment will be received until: 60 days after publication of this notice, which was posted on on the Internet on May 7, 2025.

* Consensus Rule Making Determination Section 6(1) of the Civil Service Law authorizes the State Civil Service Commission to prescribe and amend suitable rules and regulations concerning leaves of absence for employees in the Classified Service of the State. As no person or entity is likely to object to the rule as written, the proposed rule is advanced as a consensus rule pursuant to State Administrative Procedure Act (SAPA) §202(1)(b)(i).

News from the New York State and Local Retirement System

The New York State and Local Retirement System noted that the week of May 5, 2025, is week is Public Service Recognition Week, and we proudly celebrate more than 713,000 members and 522,000 retirees of the New York State and Local Retirement System (NYSLRS) for their service to the people of New York State.

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Langton v Sussman & Watkins

2025 NY Slip Op 02765

Decided on May 7, 2025

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 7, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
PAUL WOOTEN
JANICE A. TAYLOR
JAMES P. MCCORMACK, JJ.

2021-01714
(Index No. 4931/20)

[*1]Mary Langton, appellant,

v

Sussman & Watkins, et al., respondents.

Mary Langton, Chester, NY, appellant pro se.

Sussman and Associates, Goshen, NY (Michael H. Sussman pro se of counsel), for respondents Sussman & Watkins and Michael H. Sussman.

Gordon Rees Scully Mansukhani, LLP, Harrison, NY (Jason C. Scott and Anthony B. Corleto of counsel), for respondents Fabricant, Lipman & Frishberg, PLLC, and Neal D. Frishberg.

Traub Lieberman Straus & Shewsberry LLP, Hawthorne, NY (Stephen D. Straus of counsel), for respondents Goldberg Segalla and Jonathan M. Bernstein.

Furman Kornfeld & Brennan, LLP, New York, NY (Shari Sckolnick and Andrew R. Jones of counsel), for respondents McCabe & Mack, LLP and David L. Posner.

Marshall Dennehy, P.C., Melville, NY (Matthew K. Flanagan of counsel), for respondents Greenwald Doherty, LLP, and Kevin M. Doherty.

DECISION & ORDER

In an action, inter alia, to recover damages for violation of Judiciary Law § 487, the plaintiff appeals from an order of the Supreme Court, Orange County (Robert A. Onofry, J.), dated February 8, 2021. The order, insofar as appealed from, (1) granted the separate motions of the defendants Fabricant, Lipman & Frishberg, PLLC, and Neal D. Frishberg and the defendants McCabe & Mack, LLP, and David L. Posner pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them, (2) granted that branch of the motion of the defendants Greenwald Doherty, LLP, and Kevin M. Doherty which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, (3) granted that branch of the motion of the defendants Greenwald Doherty, LLP, and Kevin M. Doherty which was for certain injunctive relief to the extent of enjoining the plaintiff from commencing any new action pertaining to her removal as voluntary library trustee of the Town of Chester Library Board of Trustees without prior written permission of the Supreme Court, and (4), sua sponte, in effect, directed dismissal of the complaint insofar as asserted against the defendants Sussman & Watkins, Michael H. Sussman, Goldberg Segalla, and Jonathan M. Bernstein.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, in effect, directed dismissal of the complaint insofar as asserted against the defendants Sussman & Watkins, Michael H. Sussman, Goldberg Segalla, and Jonathan M. Bernstein [*2]is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

In 2012, the plaintiff was appointed as a voluntary library trustee of the Town of Chester Library Board of Trustees (hereinafter the Library Board). In 2014, Maureen Jagos, the director of the Town of Chester Library (hereinafter the library), raised a complaint regarding the plaintiff's conduct, which resulted in an investigation conducted by Devora Lindeman of the defendant Greenwald Doherty, LLP (hereinafter Greenwald). Following the investigation, Lindeman issued a report containing her findings and recommendations. According to a report dated July 16, 2014 (hereinafter the Lindeman report), Lindeman found that Jagos's complaints were credible and recommended that the plaintiff be asked to resign or be offered managerial training and that the plaintiff be removed as trustee if she declined to resign or undergo training. In August 2014, the Library Board voted to remove the plaintiff from her position as voluntary library trustee.

The plaintiff subsequently retained the defendant Michael H. Sussman of the defendant Sussman & Watkins (hereinafter together the Sussman defendants) to represent her in an action she commenced in the United States District Court for the Southern District of New York, alleging violations of 42 USC § 1983. The plaintiff commenced that action against (1) the Town of Chester and its Town Supervisor, Alex Jamieson, represented by the defendant Jonathan M. Bernstein of the defendant Goldberg Segalla (hereinafter together the Goldberg defendants), and (2) the Library Board and its President, Teresa Mallon, represented by the defendant David L. Posner of the defendant McCabe & Mack, LLP (hereinafter together the McCabe defendants).

The plaintiff also retained the defendant Neal D. Frishberg of the defendant Fabricant, Lipman, and Frishberg, LLP (hereinafter together the Frishberg defendants), to represent her in an action she commenced in the New York Supreme Court to recover damages for defamation (hereinafter the defamation action). The plaintiff commenced the defamation action against, among others, Jamieson. The plaintiff alleged, inter alia, that Jamieson made false statements to a local newspaper and reporter regarding Lindeman's findings and that Lindeman did not, in actuality, find that Jagos's complaint against the plaintiff was credible. The plaintiff subsequently discharged the Frishberg defendants as her counsel in the defamation action and proceeded pro se.

Thereafter, Jamieson and other defendants separately moved, in effect, for summary judgment dismissing the complaint in the defamation action insofar as asserted against each of them. In an affidavit submitted in support of Jamieson's motion, Lindeman averred, among other things, that the Lindeman report, which accompanied her affidavit and was initialed by her on each page, was authentic. In opposition to Jamieson's motion, the plaintiff asserted, inter alia, that the Lindeman report was a "forgery" and that an "authentic" report issued by Lindeman existed, which made findings in the plaintiff's favor. The plaintiff did not submit a copy of the alleged authentic report. In an order dated April 3, 2017, the Supreme Court, among other things, granted the separate motions of Jamieson and other defendants, in effect, for summary judgment dismissing the complaint in the defamation action insofar as asserted against each of them. In that order, the court determined that "[t]he defendants have conclusively established" that Jamieson's statements regarding the Lindeman report were "an accurate account of the report of the investigation conducted regarding the plaintiff."

In August 2020, the plaintiff commenced the instant action, inter alia, to recover damages for violation of Judiciary Law § 487 against the Sussman defendants, the Frishberg defendants, the Goldberg defendants, the McCabe defendants, and Greenwald and its partner, Kevin M. Doherty (hereinafter together the Greenwald defendants). The plaintiff alleged, among other things, that the defendants colluded with each other to conceal the alleged authentic version of the Lindeman report and to present a fraudulent report that resulted in the plaintiff's removal as voluntary library trustee.

Thereafter, the Frishberg defendants and the McCabe defendants separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them on the grounds, inter alia, that the action was barred by the doctrine of collateral estoppel and that the plaintiff failed to state a cause of action. In addition, the Greenwald defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on those grounds and to enjoin the plaintiff "from filing any further actions relating to her claim that the Lindeman Report exchange in her underlying action was fraudulent." In an order dated February 8, 2021, the Supreme Court, among other things, granted the motions of the Frishberg defendants, the McCabe defendants, and the Greenwald defendants, and, sua sponte, in effect, directed the dismissal of the complaint insofar as asserted against the Sussman defendants and the Goldberg defendants. The plaintiff appeals.

"Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" (Reid v Reid, 198 AD3d 993, 994). "'The two requirements for its application are: first, the identical issue necessarily must have been decided in the prior action and be decisive in the present action, and second, the party to be precluded must have had a full and fair opportunity to contest the prior determination'" (Cullen v Moschetta, 207 AD3d 699, 700, quoting Matter of Abady, 22 AD3d 71, 81). "'The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate'" (Villaver v Paglinawan, 230 AD3d 533, 535, quoting Matter of Dunn, 24 NY3d 699, 704).

Here, the majority of the plaintiff's allegations in this action were premised on her claim that the Lindeman report was a forgery and that an authentic report existed that made findings in her favor. However, the Supreme Court, in the defamation action, determined that Jamieson's statements regarding the substance of the Lindeman report were accurate, including that Lindeman found that Jagos's complaint against the plaintiff was credible and that the plaintiff should be removed as voluntary library trustee if she declined to resign or receive managerial training. Thus, the moving defendants established that the accuracy of the Lindeman report, which the plaintiff challenges in this action, had been necessarily decided against her in the defamation action (see Gold v Rothfeld, 220 AD3d 717, 718; Manko v Gabay, 175 AD3d 484, 486). In opposition, the plaintiff failed to demonstrate that she lacked a full and fair opportunity to litigate that issue (see Mortgage Elec. Registration Sys., Inc. v McVicar, 203 AD3d 919, 920; DeMartino v Lomonaco, 155 AD3d 686, 687).

Furthermore, to the extent the plaintiff raised allegations that were not precluded by the doctrine of collateral estoppel, the Supreme Court properly determined that the plaintiff failed to state a cause of action. "'On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory'" (Clevenger v Yuzek, 222 AD3d 931, 934, quoting Gorbatov v Tsirelman, 155 AD3d 836, 837).

Pursuant to Judiciary Law § 487, an attorney who is "guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party" is liable to the injured party for treble damages (see Guliyev v Banilov & Assoc., P.C., 221 AD3d 589, 591). "'A violation of Judiciary Law § 487 requires an intent to deceive'" (id., quoting Moormann v Perini & Hoerger, 65 AD3d 1106, 1108). "'Allegations regarding an act of deceit or intent to deceive must be stated with particularity'" (Guliyev v Banilov & Assoc., P.C., 221 AD3d at 591, quoting Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637, affd 25 NY3d 173). Further, "'an injury to the plaintiff resulting from the alleged deceitful conduct of the defendant attorney is an essential element of a cause of action based on a violation' of Judiciary Law § 487" (Maroulis v Sari M. Friedman, P.C., 153 AD3d 1250, 1252 [alteration omitted], quoting Rozen v Russ & Russ, P.C., 76 AD3d 965, 968). "Thus, to state a cause of action alleging a violation of Judiciary Law § 487, the plaintiff must 'plead allegations from which damages attributable to the defendants' conduct might be reasonably inferred'" (Maroulis v Sari M. Friedman, P.C., 153 AD3d at 1252, quoting Mizuno [*3]v Nunberg, 122 AD3d 594, 595). Here, the plaintiff failed to allege sufficiently specific facts from which it could be reasonably inferred either that the defendants acted with the requisite degree of scienter or that the alleged acts of deceit were the proximate cause of any injury to the plaintiff (see Pinkesz Mut. Holdings, LLC v Pinkesz, 198 AD3d 693, 697-698; Sammy v Haupel, 170 AD3d 1224, 1225).

Furthermore, under the circumstances of this case, the Supreme Court providently exercised its discretion in granting that branch of the Greenwald defendants' motion which was for certain injunctive relief to the extent of enjoining the plaintiff from commencing any new action pertaining to her removal as voluntary library trustee without prior written permission of the court (see Monaco v Van Meerendonk, 222 AD3d 744). While "public policy mandates free access to the courts," "a litigant can forfeit that right by[, as here,] abusing the judicial process through vexatious litigation" (Rossrock Fund II, L.P. v Toledo, 186 AD3d 1441, 1442 [alteration and internal quotation marks omitted]; see Caesar v HSBC Bank USA, NA, 200 AD3d 842, 843).

The parties' remaining contentions either need not be reached in light of our determination or are without merit.

DILLON, J.P., WOOTEN, TAYLOR and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

Langton v Sussman & Watkins (2025 NY Slip Op 02765)

Decision No. 18,551

Appeal of E.G., on behalf of his child, from action of the Board of Education of the Whitehall Central School District regarding student bullying and application for the removal of a teacher.

Decision No. 18,551

(February 14, 2025)

Girvin & Ferlazzo, P.C., attorneys for respondent, Ryan P. Mullahy and Victoria A. Mosley, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Whitehall Central School District (“respondent”) regarding bullying and harassment.  He also seeks the removal of a teacher in connection therewith.  The appeal must be dismissed and the application denied.

Petitioner’s child (the “student”) attended respondent’s high school at all times relevant to this appeal.  On May 8, 2024, petitioner filed a Dignity for All Students Act (“Dignity Act”) complaint alleging that the student’s English teacher engaged in bullying and harassment during the 2023-2024 school year.  The district’s Dignity Act coordinator proceeded to investigate.  By letter dated May 31, 2024, the coordinator determined that there was insufficient evidence of a Dignity Act violation.  An appeal to respondent was denied by letter dated June 20, 2024; this appeal ensued.

Petitioner alleges that the teacher acted unprofessionally toward the student when she accused her (and others) of cheating, tossed a packet of materials on to the student’s desk, and “intentionally ignored” the student thereafter.  For relief, petitioner requests a determination that the teacher violated the Dignity Act as well as her “removal” from employment with the district.

Respondent contends that the appeal should be dismissed on myriad procedural grounds.  Alternatively, respondent contends that petitioner failed to meet her burden of proof.  Respondent additionally argues that the application for removal is moot insofar as the teacher resigned her position within respondent’s district at the end of the 2023-2024 school year.

Initially, petitioner’s application for removal must be denied for lack of the required notice.  Section 277.1 (b) of the Commissioner’s regulations dictates the specific notice required for removal applications pursuant to Education Law § 306, which is distinct from the notice required under section 275.11 (a) for appeals pursuant to Education Law § 310.  The notice of petition secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of Hertel, 49 id. 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832).  Thus, a removal application that does not include the specific notice required by 8 NYCRR 277.1 (b) is fatally defective and must be denied (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of White and Carmand, 56 id., Decision No. 16,994; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Petitioner’s application lacks the required notice and, thus, must be denied (Appeal of Melton, 63 Ed Dept Rep, Decision No. 18,359; Appeal of M.B., 56 id., Decision No. 17,044).[1]

Turning to the merits, the Dignity Act prohibits harassment and bullying in public schools.  It defines “harassment” and “bullying,” in relevant part, as: “the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying ....” (Education Law § 11 [7]; 8 NYCRR 100.2 [kk] [1] [ix]).  Such a hostile environment may be created where bullying or harassment:

(a) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being; or

(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or

(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student ....[2]

A district’s Dignity Act determination will only be reversed upon a showing that it was arbitrary or capricious (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859; Appeal of L.D., 55 id., Decision No. 16,864).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

The record demonstrates that respondent appropriately responded to petitioner’s Dignity Act complaint.  Upon receipt thereof, respondent’s Dignity Act coordinator promptly investigated by interviewing the student and reviewing the complaint and supporting materials.  After doing so, the coordinator determined that the complaint “was not based on harassment, bullying, or discrimination as defined in [the Dignity Act], but rather [p]etitioner’s conflict with [the teacher’s] general teaching/advising style.”  Petitioner’s evidence, by contrast, consists of hearsay statements and his subjective interpretation of correspondence from the teacher.  Weighing the probative value of the parties’ submissions, I find that petitioner has failed to prove that respondent’s Dignity Act determination was arbitrary or capricious (see Appeal of G.M., 62 Ed Dept Rep, Decision No. 18,257; Appeal of M.E., 62 id., Decision No. 18,248; Appeal of John and Jane Doe, 61 id., Decision No. 18,088).  Moreover, petitioners have not identified any relief that can be awarded at this juncture as the teacher has resigned.

To the extent they are not addressed herein, petitioner’s remaining arguments are without merit.

THE APPEAL IS DISMISSED.

THE APPLICATION IS DENIED.

Decision No. 18,551 | Office of Counsel