IN RE: Gloria BLAIZE (2009)

In a proceeding pursuant to CPLR article 78 to review a determination of John T. Comer, as Community Superintendent of Community School District 22, dated March 20, 2003, which, after a hearing, among other things, in effect, reaffirmed a prior determination of Beverly Lynch, in her capacity as Rating Officer and Principal of Community School District 22, P.S. 134, dated June 20, 2000, rating the petitioner's performance as “unsatisfactory,” the petitioner appeals from a judgment of the Supreme Court, Kings County (Held, J.), dated July 24, 2008, which denied that branch of the petition which was to annul so much of the determination dated March 20, 2003, as, in effect, reaffirmed the prior determination dated June 20, 2000, rating her performance as “unsatisfactory,” and dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, with costs, that branch of the petition which was to annul so much of the determination dated March 20, 2003, as, in effect, reaffirmed the prior determination dated June 20, 2000, rating the petitioner's performance as “unsatisfactory,” is granted, and that portion of the determination dated March 20, 2003, is annulled.

The petitioner had been a probationary assistant principal for 2 years, following a career as a teacher for over 20 years, when, on June 20, 2000, she received an “unsatisfactory” performance rating (hereinafter the U-Rating determination).   Subsequently, on June 27, 2000, she was discontinued as a probationary assistant principal (hereinafter the discontinuance determination).   Through internal proceedings with the New York City Department of Education, the petitioner appealed the U-Rating determination and the discontinuance determination.   Those determinations were both, in effect, reaffirmed in a determination dated March 20, 2003, by John T. Comer, in his capacity as Community Superintendent of Community School District 22 (hereinafter the determination dated March 20, 2003).   The petitioner thereafter commenced this proceeding pursuant to CPLR article 78 to review the determination dated March 20, 2003.   On a prior appeal, this Court held that the petitioner's challenge to so much of the determination dated March 20, 2003, as reaffirmed the discontinuance determination was time-barred, and that portion of the proceeding was dismissed (see Matter of Blaize v. Klein, 23 A.D.3d 650, 804 N.Y.S.2d 813).   This Court additionally noted that the Supreme Court did not address the petitioner's challenge to the U-Rating determination and, thus, that matter was still pending and undecided (id. at 652, 804 N.Y.S.2d 813).

In a subsequent judgment, the Supreme Court held that the U-Rating determination was not arbitrary and capricious and, thus, it was properly reaffirmed in the determination dated March 20, 2003. The petitioner appeals from that judgment, and we reverse.

 “Under most circumstances, judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence (see CPLR 7803[4];  300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179 [408 N.Y.S.2d 54, 379 N.E.2d 1183];  Matter of 105 Northgate Coop. v. Donaldson, 54 A.D.3d 414, 416 [863 N.Y.S.2d 469];  Matter of New Venture Gear, Inc. v. New York State Div. of Human Rights, 41 A.D.3d 1265, 1266 [839 N.Y.S.2d 375] )” (Matter of Lipani v. New York State Div. of Human Rights, 56 A.D.3d 560, 560-561, 867 N.Y.S.2d 505).   However, where the sole issue presented is whether an agency complied with its own internal procedures, the appropriate standard of review is whether the determination was “made in violation of lawful procedure” (CPLR 7803[3];  cf. Matter of Syquia v. Board of Educ. of Harpursville Cent. School Dist., 80 N.Y.2d 531, 537, 591 N.Y.S.2d 996, 606 N.E.2d 1387;  Matter of Melendez v. Board of Educ. of Yonkers City School Dist., 34 A.D.3d 814, 815, 828 N.Y.S.2d 67;  Matter of Smith v. Board of Educ., Onteora Cent. School Dist., 221 A.D.2d 755, 633 N.Y.S.2d 625).

 It is a “fundamental administrative law principle that an agency's rules and regulations promulgated pursuant to statutory authority are binding upon it as well as the individuals affected by the rule or regulation” (Matter of Lehman v. Board of Educ. of City School Dist. of City of N.Y., 82 A.D.2d 832, 834, 439 N.Y.S.2d 670;  see also Matter of Syquia v. Board of Educ. of Harpursville Cent. School Dist., 80 N.Y.2d at 535-536, 591 N.Y.S.2d 996, 606 N.E.2d 1387).   An adverse agency determination must be reversed when the relevant agency does not comply with either a mandatory provision, or one that was “intended to be strictly enforced” (id. at 536, 591 N.Y.S.2d 996, 606 N.E.2d 1387).

 Here, several procedural errors were made in the petitioner's rating and rating appeals process.   For example, the petitioner was not provided with the complete set of documents on which the U-Rating determination was based within three weeks of her challenge to the U-Rating determination, as mandated by the appeals process regulations promulgated pursuant to the Board of Education By-Law § 5.3.4A. In fact, the hearing, which took place more than two years after the petitioner initiated the appeal process, as a consequence of waivers by the petitioner, was additionally delayed until the petitioner was provided with the documentation.   Thus, the initial determination was rendered “in violation of lawful procedure” (Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321;  see also CPLR 7803[3] ), as was so much of the determination dated March 20, 2003, as, in effect, reaffirmed the U-Rating determination (see Matter of Bonilla v. Board of Educ. of City of N.Y., 285 A.D.2d 548, 728 N.Y.S.2d 69).