BATYREVA v. NEW YORK CITY DEPARTMENT OF EDUCATION (2008)

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered November 3, 2006, which granted respondent's cross motion to dismiss the petition brought pursuant to CPLR article 78 seeking, inter alia, to reverse two unsatisfactory evaluation ratings petitioner received during the 2003-2004 and 2004-2005 school years, unanimously affirmed, without costs.

 Respondent's cross motion was properly granted, where the record evidence, including seven unsatisfactory classroom observations of petitioner's classroom performance for the 2003-2004 school year, and four unsatisfactory observation reports for the 2004-2005 school year, establishes that the administrative decision to uphold petitioner's unsatisfactory reviews was not arbitrary, capricious or irrational (see Matter of Chauvel v. Nyquist, 43 N.Y.2d 48, 52, 400 N.Y.S.2d 753, 371 N.E.2d 473 [1977] ).   We reject petitioner's claims that this matter should have been transferred to this Court for a substantial evidence determination, and that factual issues are raised by the incomplete tapes of her hearing before the Chancellor's Committee, as raised for the first time on appeal (see District Council 37, Am. Fedn. of State, County & Mun. Empls., AFL-CIO v. City of New York, 22 A.D.3d 279, 284, 804 N.Y.S.2d 10 [2005];  Matter of Wallace v. Environmental Control Bd. of City of N.Y. [Dept. of Consumer Affairs], 8 A.D.3d 78, 778 N.Y.S.2d 477 [2004] ). Were we to review these claims, we would find that the petition should not have been transferred because it did not seek review of a determination made “as a result of a hearing held ․ pursuant to direction by law” (CPLR 7803[4] ).   Nor has petitioner demonstrated that a full transcript of the hearing before the Chancellor's Committee, which was held in conformity with respondent's bylaws, was unavailable upon request.

We have considered petitioner's remaining contentions and find them unavailing.