Zrake v. New York City Department of Education

Appellate Division of the Supreme Court of New York

Zrake v. New York City Department of Education

41 A.D.3d 118, 838 N.Y.S.2d 31

Appellate Division of the Supreme Court of the State of New York·Decided June 5, 2007·Published·Cited by 7 cases

Opinion

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered March 16, 2006, which denied the challenge to a disciplinary ruling that petitioner be discharged as a teacher for unfitness and granted respondent’s cross motion to dismiss this proceeding, and order, same court and Justice, entered on or about September 5, 2006, which, to the extent appealable, denied petitioner’s motion to renew, unanimously affirmed, without costs.

Petitioner’s arguments in support of his application to vacate this arbitration ruling under Education Law § 3020-a on the grounds of actual bias and misconduct on the part of the arbitrator and respondent were unsupported by clear and convincing evidence (Kalfus v Kalfus, 270 AD2d 41 [2000]; Matter of Herskovitz [Kaye Assoc.], 170 AD2d 272 [1991], lv dismissed 78 NY2d 899 [1991]). His motion to renew was not based on new facts that would have changed the prior decision. Even assuming the hearing officer’s resumé was considered a new fact, petitioner did not provide a reasonable justification for his failure to present it on motion (CPLR 2221 [e] [2], [3]). In any event, the resumé, which demonstrated the hearing officer’s as[119]*119sociation with another hearing officer who had presided over a prior unrelated hearing, was insufficient to demonstrate bias by clear and convincing evidence.

We have considered all other issues raised by petitioner and find them unavailing. Concur—Friedman, J.P., Marlow, Nardelli, Buckley and Kavanagh, JJ.

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Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered March 16, 2006, which denied the challenge to a disciplinary ruling that petitioner be discharged as a teacher for unfitness and granted respondent’s cross motion to dismiss this proceeding, and order, same court and Justice, entered on or about September 5, 2006, which, to the extent appealable, denied petitioner’s motion to renew, unanimously affirmed, without costs.

Petitioner’s arguments in support of his application to vacate this arbitration ruling under Education Law § 3020-a on the grounds of actual bias and misconduct on the part of the arbitrator and respondent were unsupported by clear and convincing evidence (Kalfus v Kalfus, 270 AD2d 41 [2000]; Matter of Herskovitz [Kaye Assoc.], 170 AD2d 272 [1991], lv dismissed 78 NY2d 899 [1991]). His motion to renew was not based on new facts that would have changed the prior decision. Even assuming the hearing officer’s resumé was considered a new fact, petitioner did not provide a reasonable justification for his failure to present it on motion (CPLR 2221 [e] [2], [3]). In any event, the resumé, which demonstrated the hearing officer’s as[119]*119sociation with another hearing officer who had presided over a prior unrelated hearing, was insufficient to demonstrate bias by clear and convincing evidence.

We have considered all other issues raised by petitioner and find them unavailing. Concur—Friedman, J.P., Marlow, Nardelli, Buckley and Kavanagh, JJ.

Zrake v. New York City Department of Education, 41 A.D.3d 118, 838 N.Y.S.2d 31 (N.Y. Ct. App. 2007).

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