5/21/2018 2013-ny-slip-op-31175-u

1/6

Matter of Strong v New York City Dept. of Educ.

2013 NY Slip Op 31175(U)

May 28, 2013

Sup Ct, New York County

Docket Number: 400171/13

Judge: Donna M. Mills

Republished from New York State Unified CourtSystem's E-Courts Service.

Search E-Courts (http://www.nycourts.gov/ecourts) forany additional information on this case.

This opinion is uncorrected and not selected for officialpublication.

5/21/2018 2013-ny-slip-op-31175-u

2/6

SCANNED ON

61312013

re

SUPKEME

COURT O F THE STATE

OR

NEW YORK- N

PKESEN I :a

DONNA

M .

MILLS

ustice

.~

In

the

Muller o f t h e

Application

of

YOLANllA T. STRONG

400

1 7 1

4 3 -

Petitioner, Mo i

J O N

DATE

For

a

Judgment

Pursuanl

to

Article

78 of th e Civil Practice

I ,aw and Rules

-against-

N E W

YORK CITY DEI ARTMEN I OF BlIlJCIATION,

Respondent. M o HON C A L

No.

.~~

.~

-

.

I he fbllowjng papcrs

iiurnberccl

1 to were rcad on

this motion

PAPERS

NUMREIIE1)

Notice

of

MotioldOrdcr to

Show

Cause-Affidavits-

Exhibits

....

1 3

/

Aiiswcring Aftidnvits-

Exhibits

I

Rcpl ying Affidavits-- - 54 ~

~

/

Check one:

d - . I N A I DIS

PO TION

- - __

J S

c

DONNA

e

MILLS

J.S.C.

NON-

Fl N

AL

DI

SPOSITION

[* 1]

5/21/2018 2013-ny-slip-op-31175-u

3/6

YO1

ANDA

1 S T R O N G ,

Petilioncr,

Index

No.

4001

71/13

IIONNA

M .

MILLS,.^.:

In this special proceed ing pursuant

to

C.P.L .R. Article 78 , Pe titioner Yolanda T.

Strong Petitioner),

a

former teacher employed by the Board of Edu cation o f the City

of N ew York

(BOE),

eeks

a

reversal of the

BOEs

determination to uphold her annual

performanc e rating of Unsa tisfactory U-rating) for the

2005-06 school

year,

Petitioner further seeks an annulment

of

the BOEs determination to place her name on

the BOEs Ineligible/lnquiry List effective M arch 17, 2006, following t h e termination of

her BOE teaching

license s)/certificate s),

and seeks reinstatement

as

well

as

compensation for lost wages as well

as

pain and suffering. Respo ndent opposes the

petition and cross-m oves to dismiss the petition.

BAGKG

ROU

D

Petitioner

was

employed by the BOE, most recently as a pe r diem substitute

teacher during the

2005-06

school year. On or

about

February 13, 2006, petitioner was

assigned to teach a second grade class at Public School 52 PS

52)

located in

Queens, New York. On or about February 1 7,

2006,

BOEs Office of Special

Investigations OSI) receiv ed

a

call

from

an Assistant Princip al at

PS

52,

Deborah

Roney, who reported that a n accusation of corporal punishm ent

h a d

been made

against petitioner. Sp ecifically,

a

student alleged that petitioner

had

grabbed him

a n d

swung him into

a

chair, causing him

to

fall

to

the floor a n d to sustain

a

scratch on his

stomach

OS1

Confidential Investigator Benjamin Francis

was

assigned to investigate

[* 2]

5/21/2018 2013-ny-slip-op-31175-u

4/6

the allegations.

Bas ed on his investigation and the studen t interviews, OS1 Investigator F rancis

issued his conclusions and recomm endation on Apri l

26,

2006. Specifically, OS1

Investigator Francis concluded that the corporal punishment allegations against

petitioner for her acts in grabbing th e subject stude nt and swinging h im into a chair,

causing him to fal l , were substantiated. He further recommended that p etit ioner remain

on the lneligiblellnquiry List and that the matter be transferred to BOE Region 3

Superintenden t Judith Chin so she could com mence the proce ss of terminating

petit ioners employm ent.

For the school year ending in June 2006, petitioner rece ived a U-rating from

PS

52 Principal Linda P ough. Specifically, Principal Pough rated petitioner unsatisfactory

in the are as of Effec t on character and personality growth of pupils, and Attention to

pupil health, safety and gen eral welfare.

Petitioner requested and had a U-rating review before the Chancellors

Committee on February

8,

2007. Chan cellors Comm ittee Chairperson Michael Agona

issued a report and recomm endation to the C hancellors Office. In his report

Chairperson Agona found that petit ioner engaged in corporal punishmen t and

recommended to terminate any a nd

all

l icense s)/certificate s ) held b y petitioner.

On May

24,

2007, after reviewing Chairperson Agon as R eport, Deputy

Chancellor Andres Alonso, as the Chan cellors designee, adopted t h e recommendation,

terminated petitione rs teaching license(s)/certificate(s)nd sustained the decision to

place petitione rs nam e on the lneligibility/lnquiry List.

On or

about

July

30, 2007,

petit ioner com menced a special proce eding pursuant

to Article 78 in New York Co unty seeking

to

have her name removed from the

Ineligible/lnquiry List, her U-rating

for

the

2005-06

school year a nnulled, and

reinstatement to her position with the BOE as a per diem substitute teacher.

On August

19,

2008,

a Justice

of

this Court granted petitione rs application

to

annul respondent BOEs determination to terminate petitioners probationary

emp loyment as a per diem substitute teacher. H owever, the Appellate Division, First

Department reversed this decision and dismissed the petition on May

26, 2009.

The

First Depa rtment dismissed the p etit ion

as

t ime-barred having been commenced more

[* 3]

5/21/2018 2013-ny-slip-op-31175-u

5/6

than four mon ths after petit ioner was informed of BOEs determination that she ha d

engaged in an act of corporal punishment in violation of the Chancellors Rules and

Regulation and that her name would remain on the IneligibleAnquiry List. Moreover, the

First Department found that Respondent BO Es determination that petit ioner engaged

in an act of corporal pun ishment was not arbitrary and capricious.

On Mach 20, 201 2, petitioner then reque sted ano ther U-rating appe al review to

challenge the U-rating she received for the 20 05-06 school year. Upon consideration of

testimony and information presented, the C hancellors Com mittee Chairperson Sheila

Bobo issued

a

recommendation to the Chancellor

to

deny petitioners U-rating appeal,

concurring with the recom men dat on that her teach ng

I

cense s)/certif cate s) be

terminated effective M arch 17, 2006.

On August 28, 2012, S enior Deputy Chancellor Shael Polakow S uransky, acting

as the C hancellors designee, sustained the recom men dation of the C hancellors

Com mittee and den ied the ap peal of petit ioners U-rating as well as upheld the

termination of any and all Ne w York City Department of E ducation teaching

Iicense s)/certificate s) held by petitioner, effective March 17, 2006.

On January 28, 2013, petitioner comm enced this special proceeding pursuant to

Article 78 seeking once again to have the court annul the BOEs determination to place

her nam e on the IneligibleAnq uiry List, reverse her U -rating, and ord er her

reinsta em en

LEGAL DISCUSSION

Recognizing that petitioner is a pro se l itigant, the court frames its decision b y

recognizing that a p ro se litigant mu st be given sorne latitude du e to her lack of formal

legal training and unfamiliarity with court procedures and that her pleadings and papers

should b e given every favorable interpretation which can

be

drawn see Mosso v

Mosso, 6 AD3d 827, 828 [2004]; Sabatino v Albany M ed. Center Hosp ., 187 AD2d

777

[1992]; Moore

v

Cou ntv of Rensselaer,

156

AD2d

784 [19 89]). However, a pro

se

l itigant who represents herself proceeds at her ow n risk, is not entitled to any greater

rights than an y other party, and cannot get concessions at the expe nse of another

partys rrghts see Roundtree v Sinqh, 143 AD2d

995

[1988];Johnson v Title North,

_.

nc,.

31 AD3d

1071 [2006]).

[* 4]

5/21/2018 2013-ny-slip-op-31175-u

6/6

The

well establishe d d octrine of res judicata

operates

to

preclude the renewal

of issues actually litigated an d resolved in a prior proceed ing as well as claims for

different relief which arise out of the same factual grouping or transaction a nd which

should have or

could

hav e been resolved in the p rior proceeding

Luscher

v

Arrua, 21

AD3d 1005, 1006, 1007 [2005], quoting K oether v Generalow, 21 3 AD2d 379, 380

[I

9951). Here, the petitioner see ks an annulmen t of the

BOEs

determination to place

petitioners name on th e Ineligible/lnquiry List, a reversal of her U -rating, and h er

reinstatement with Respon dent

BOE. A

comparison between this petition and

t h e

2007

petition brought by p etitioner reveals that she previously sought the sam e relief arising

out

of

the same factual foundation: the removal of her name from the Ineligible/lnquiry

List

and the reinstatement of her employment. Indeed, both petitions ask the Court

to

reverse the consequences imposed on petitioner stemming form the BOEs

determination that petitioner had engaged in corporal punishment in violation

of

the

Chancellors regulations,

a

determination the First Depa rtmen t previously held was not

arbitrary and capriciou s. see Strong

v

New York Citv Dept of

Educ., 62

AD3d

592, 593

[ I s t

Dept 20091, leave

to

appeal denied, 14 NY3d 704

[2010]).

Applying the principles of res judicata

as

set forth above,

it

is clear that the relief

sought

in

this action is essentially the s a m e as that sought in the Article 78 proceeding

previously determined adversely to the plaintiff, and that the claims arise out of the

same

or related facts

Pauk v

Bd. Of Trs. of the Citv Univ. of

New

York,

I I 1

AD2d

17

20 [ st

ept ISSS] ) .

Accordingly it is

ORD ERED and AD JUDG ED that the petit ion is denied and it is further

ORDERED and AD JUD GED that the cross motion is granted and the proceeding

is dismissed.

[* 5]