IN RE: DIANA HOFMAN AYNGORN (2026)

Glass & Hogrogian LLP, New York (Michael T. Donnelly of counsel), for appellant.

Steven Banks, Corporation Counsel, New York (D. Alan Rosinus, Jr. of counsel), for respondents.

Judgment (denominated an order), Supreme Court, New York County (Verna L. Saunders, J.), entered May 13, 2025, which, to the extent appealed from as limited by the briefs, denied the petition seeking to annul the determination of respondent the New York City Department of Education (DOE), dated April 16, 2024, administratively closing petitioner's application for a security clearance, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the proceeding reinstated and the petition granted to the extent of annulling DOE's determination and directing DOE to process petitioner's clearance application.

The parties entered a settlement agreement to resolve a prior article 78 proceeding brought by petitioner against DOE. Under the agreement, petitioner released her claims, and in return DOE's Office of Personnel Investigation (OPI) agreed to “clear [petitioner] for work if she is nominated for employment with a[DOE] vendor provided that:  (1) she is not an independent provider, and (2) she is not a primary stakeholder in the [DOE] vendor.”

In 2024, petitioner was nominated for a speech pathologist position with Salveo Healthcare Solutions, Inc., an independent agency that provides services to DOE. The position was contingent upon petitioner receiving security clearance with DOE. OPI later notified petitioner via letter that her application was “administratively closed with no determination made,” stating that she had been “nominated for a position as a Speech Pathologist with Independent Providers” and that based on the settlement she was “not permitted to work as an independent provider.”

The term “independent provider” as used in the settlement is ambiguous (see Ellington v. EMI Music, Inc., 24 NY3d 239, 244 [2014] ).  On the one hand, the condition that petitioner may be cleared so long as “she is not an independent provider” suggests DOE intended to bar petitioner from working individually and directly for DOE or from working without affiliation with a vendor consistent with the plain meaning of independent as “not affiliated with a larger controlling unit” (see Merriam–Webster).

On the other hand, the settlement's language “if she is nominated for employment with a[DOE] vendor provided that ․ she is not an independent provider” renders the meaning ambiguous.  A person cannot be both independent (that is, unaffiliated with a vendor) and be “employ[ed] with a[DOE] vendor.”  If read literally, the language as written would include everybody in the employ of a DOE vendor.  Harmonizing this language (see Gessin Elec. Contractors, Inc. v 95 Wall Assoc., LLC, 74 AD3d 516, 518 [1st Dept 2010] ) requires reading it to mean that DOE uses the term “independent provider” to refer to a particular category of positions that, although affiliated with a vendor, are nevertheless internally designated by DOE as “independent providers.”  DOE, however, does not define the scope of this category or explain how its usage aligns with the ordinary meaning of “independent.”

Other language in the settlement, including the second prohibition against petitioner working with an entity she owns and the circumstances under which the settlement arose, support petitioner's interpretation and reinforce that the term “independent provider” is ambiguous (see Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 570–71 [2002];  Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P., 60 AD3d 61, 66–67 [1st Dept 2008], affd 13 NY3d 398 [2009] ).  The ambiguity permits reference to extrinsic evidence (Chen v. Yan, 109 AD3d 727, 729 [1st Dept 2013] ).

The extrinsic evidence in the record resolves the ambiguity in petitioner's favor.  During settlement discussions, petitioner expressly sought assurance that she “[c]ould work as a Speech Pathologist with a vendor,” which she described as an “Independent Provider Agency.”  Counsel for DOE clarified that DOE's “[p]roblem” was petitioner “working with a company that” that petitioner owned or working directly for DOE “as an independent provider not associated with another company/vendor.”  This explanation demonstrates that the settlement intended to restrict petitioner only from direct work for DOE or work through an entity she owned and not from employment with independent agencies such as Salveo.

It is undisputed that petitioner was nominated for a position with Salveo, “an organization or agency providing services to [DOE].” DOE's argument that petitioner “admitted” her role as “an “independent provider” misreads the petition.  The petition used “independent provider” as a term of art to explain the very ambiguity at issue and not to concede DOE's interpretation.  Because DOE's determination rested on a misreading of the settlement, and not on any permissible interpretation of the term “independent provider” the determination was irrational (see CPLR 7803[3] ).

We note that DOE retains “the right to deny petitioner clearance ․ for any reason, other than the reasons that gave rise to the [prior] litigation.”