

Duncan v New York City Dept. of Educ. (2015 NY Slip Op 00444)





Duncan v New York City Dept. of Educ.


2015 NY Slip Op 00444


Decided on January 15, 2015


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 on January 15, 2015

Mazzarelli, J.P., Sweeny, Andrias, Moskowitz, Richter, JJ.


13948 105115/11

[*1] Trevor Duncan, M.D., Petitioner-Appellant,
vThe New York City Department of Education, Respondent-Respondent.


Felton & Associates, Brooklyn (Regina Felton of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Michael J. Pastor of counsel), for respondent.

Amended judgment, Supreme Court, New York County (Peter H. Moulton, J.), entered August 29, 2013, denying the petition to vacate an arbitration award terminating petitioner's employment with respondent the New York City Department of Education (DOE), and dismissing the proceeding brought pursuant to CPLR article 75 and Education Law § 3020-a(5), unanimously affirmed, without costs.
The Hearing Officer's determination was in accord with due process, rational, and supported by adequate evidence (see Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 567-568 [1st Dept 2008]). The specifications sufficiently apprised petitioner of the charges against him (see Matter of D'Ambrosio v Department of Health of State of N.Y., 4 NY3d 133, 140 [2005]). Indeed, the specifications detailed the bases for the charges and listed specific dates that corresponded to numerous observation reports and letters to petitioner's file (cf. Wolfe v Kelly, 79 AD3d 406, 410-411 [1st Dept 2010], appeal dismissed 17 NY3d 844 [2011]). Further, petitioner was able to mount a defense; indeed, he called 13 out of the 18 witnesses, and his counsel had the opportunity to examine or cross-examine every witness (see Matter of Ajeleye v New York City Dept. of Educ., 112 AD3d 425, 425 [1st Dept 2013]). There is no basis to disturb the Hearing Officer's credibility findings in favor of the DOE's witnesses (see id.).
The selection of the Hearing Officer comported with the law (see Education Law § 3020-a[3][b][ii]). Further, the record shows that petitioner had an adequate opportunity to prepare for the hearing, as the notice of charges and specifications were mailed to his home approximately a month before the hearing, and he retained counsel over a week before the hearing.
Petitioner's argument regarding the DOE's answer was not presented to the Supreme Court, and it may not be raised for the first time on appeal (see Ta-Chotani v Doubleclick, Inc., [*2]276 AD2d 313, 313 [1st Dept 2000]).
We have considered petitioners' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 15, 2015
CLERK


