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Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY ---~--.- ALICE SCHLESlNGER pl~ PART 16 Justice Index Number: /2009 BRENNAN, PHILOMENA vs. THE NYC DEPARTMENT OF EDUCATION SEQUENCE NUMBER: # 001 ARTICLE 78 INDEX NO. MOTION DATE ~ MOTION SEQ. Nila= MOTION CAL NO. ere read n this mtin t!fr Ntice f Mtin! Order t Sh Cause - Affidavits Exhibits... PAPERS NUMBERED eṉ Z <t rx: CJ z ~~ ::::>... ""0 OLL. I-- C::r: I- cece ce ~LL. W ce > ::::> LL. I- U W Q. rx: ~ <t U- Z i= 2 Ansering Affidavits - Exhibits Replying Affidavits Crss-Mtin: 'fj Yes N Upn the freging papers. it is rdered that this I"I2OtiJ;>fl 4v~"c (~ 7 f ~~W"~ (MAd CVv<;')-}t'{eJ~ -v~ drcj.~d in,?av/-. ~ av1 1vt+ev(~h tl( /.r j"v1 ac'cydt1-a46< i0'i-4 OC~~O ~~d~ ck~'i'm, Dated: M_A_Y_l--=.:2~20><...Jl'-l.LD ALICE SCHLESf. GE S.c; Check ne: FINAL DISPOSITION XNON-FINAL DISPOSITION Check if apprpriate: DO NOT P T REFERENCE

2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK )( In the Matter f the Applicatin f PHILOMENA BRENNAN, Petitiner, Index N /09 Mtin Seq. N. 001 Fr An Order and Judgmt Pursuant t Article 78 f the Civil Practice La and Rules, -against- NEW YORK CITY DEPARTMENT OF EDUCATION, Respndt )( SCHLESINGER, J.: Befre this Curt is an Article 78 petitin herein the petitiner Philma Brnan is asking the Curt t grant relief vis-a-vis t issues. One issue has t d ith her desire t ithdra her resignatin, as a teacher ith the Ne Yrk City Departmt f Educatin. The resignatin ccurred n September 5,2007. The secnd relief sught is her remval frm an Ineligiblellnquiry list here she as placed n February 4,2009. Sme backgrund is necessary. Ms. Brnan as a tured teacher at that time she as assigned, in 2006 t Frederick Duglas Academy in Brklyn. At sme pint, at the d f the schl year, she indicates that she as apprached by the principal Tamika Mathesn h gave her an unsatisfactry rating, the first ne she had ever received. Again, accrding t the petitiner a discussin bete the principal and herself as held and pursuant t that discussin, Ms. Brnan decided t frmally resign frm her teaching psitin. In the suing perid she did sme substitute teaching. In January f2009, after a discussin ith thers, she decided t take steps t ithdra her resignatin.

3 Again, accrding t Ms. Brnan, n January 30,2009 she returned t the Frederick Duglas Academy in rder t talk t the principal. She said she sa the principal, as escrted t her ffice and tld t ait a fe mmts and abut t minutes later she as arrested, handcuffed and charged ith the Misdemeanr f Trespass and the Vilatin f Harassmt. Pursuant t rules, hich Ms. Brnan kne, she immediately reprted the arrest t the Departmt. Th, as a result fthe arrest, she as placed n an Ineligiblellnquiry list. The presce f ne's name n the list makes that persn ineligible fr rehire r fr a teaching assignmt. On June 10,2009 all charges ere dismissed against Ms. Brnan. Shrtly thereafter, either the next day r very sn after, Ms. Brnan made a frmal request t have her name tak ff this list. At the time she made that request she prduced prf that all charges ere dismissed. T this day, May 12, 2010, Ms. Brnan still has nt be infrmed f hether r nt her request t have her name struck frm the list has be decided. On June 21, 2009 and again in January 2010, Ms. Brnan had hat culd be categrized as a hearing, but in actuality cnsisted f a shrt meeting herein she again prested dcumtatin that the charges against her ere dismissed in their tirety. She has als made attempts t ithdra her resignatin. Hever, ith regard t that relief, there is a cnditin fr such ithdraal, the cnditin being that the teacher in petitiner's status must sh the Departmt that there has be a ritt request t fill a vacancy by a reginal manager f the departmt. In ther rds, it is nt simply a ministerial act frthe Chanceilrt permit a resigned teacher t ithdra that resignatin. There is a cnditin, as stated abve, that first must be met. But f curse, as petitiner 2

4 argues, it is impssible fr Ms. Brnan t meet this cnditin as lng as she remains n the Ineligible list. The respndt argues that ith regard t the petitiner's request t have her name struck frm the Ineligible list, that request via herarticle 78 Petitin is time barred. Cunsel urges that the fur mnth statute began running n February 4, 2009, h she as first placed n the list. That uld mean that the mmt that the charges ere dismissed n June 9, she uld have be barred frm asking t have her name remved frm the list. Franklx, this is an argumt that makes n sse hatsever. The petitiner pursuant t the respnsibilities f a teacher kne that she had t reprt an arrest and did s. She as nt legally aggrieved by her placemt n the list in February because the charges ere still pding. The time that she became aggrieved as after the charges ere dismissed and after she made a demand t have her name remved frm the list. Ev th she as nt yet aggrieved, because she as never giv a decisin dying her request t remve her name frm the list. Therefre, she as nt time barred in June 2009 h she made her first request and ev thugh this Curt des nt have t reach this issue, she is nt ev time barred n. And certainly h she brught her petitin n September 14, 2009 she as nt time barred. (Bind v. Ne Yrk State Bard fparle, 60 NY2d 832 (1983». With regard t the ithdraal f her resignatin, a reslutin f that issue must aait a determinatin f the Ineligible list issue. Therefre, the Curt is directing the flling. First, the Departmt f Educatin is rdered t make a decisin ith regard t the cntinuatin f Ms. Brnan's name n the Ineligible list ithin thirty days frm tday r by 3

5 June 16, 2010 and ntify petitiner prmptly f this. The Departmt has n right t keep Ms. Brnan in a perpetual state f limb by nt making this decisin. If the decisin is adverse t her, clear reasns must be stated. I am adjurning this matter until July 7,2010 at 2:15 p.m. fr further cnsideratin f hat relief is sught after a decisin has be reached. This decisin cnstitutes the interim rder f this C. ~rt. ( (\ Dated: May 12, 2010 ~ ~...~. MAY J O ALICE SCHLESINGER 4