Will an appeal from a teacher termination survive a motion to dismiss when the arbitrator’s record is full and complete?

No. An elementary school teacher from the Bronx who received satisfactory and effective ratings since he was hired in September 2005 sought to set aside the finding, after a seven day hearing, of just cause to terminate him.

The hearing concerned two group of specifications which alleged that “[Petitioner] engaged in indecent exposure, inappropriate touching, corporal punishment, conduct which could constitute a crime, conduct unbecoming his profession, misconduct and neglected duties.” and that “[He] engaged in corporal punishment, conduct which could constitute a crime, conduct unbecoming his profession, excessive lateness, misconduct and neglected his duties.”

On appeal to the Supreme Court the teacher raised several defenses including factual arguments and a due process violation. The DOE moved to dismiss the petition and the Court agreed to dismiss the petition.

Justice Edmead found that where there is a significant record petitioner’s assertions of factual errors cannot defeat a motion to dismiss. The Court will, according to Justice Edmead, look to documentary evidence submitted (the record) to go beyond petitioner’s assertions.

[It should be noted that under normal motion practice a motion to dismiss treats petitions as true in order to decide whether the respondent must answer the petition. While the Court found that factual assertions were not enough to cause the DOE to answer the petition due to the record the petition did allege that that the penalty of termination “shocked the conscience.” The Court did not make a finding concerning this allegation. The petitioner appealed the decision on July 1, 2016. Edlawfaqs will follow this case.)

In the Matter of the Application of NOAH BERKLEY, Petitioner, For an Order Vacating a Decision of a Hearing Officer pursuant to Section 3020-a (5) of the Education Law and Article 75 of the CPLR, v. NEW YORK CITY DEPARTMENT OF  EDUCATION Respondent. Docket No. 650648/2016, No. 2016 NY Slip Op 31210(U),.  Supreme Court, New York County. June 27, 2016. (Carol Edmead, J)

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