IN RE: Nathanael Weinberger

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Nathanael Weinberger, appellant, v. Elmsford Union Free School District, et al., respondents.

2012–09771 (Index No. 13396/11)

Decided: October 29, 2014

WILLIAM F. MASTRO, J.P. SANDRA L. SGROI JEFFREY A. COHEN ROBERT J. MILLER, JJ. Glass Krakower LLP, New York, N.Y. (Bryan D. Glass of counsel), for appellant. Keane & Beane, P.C., White Plains, N.Y. (Jaclyn G. Goldberg of counsel), for respondents.

Argued—September 19, 2014

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, to direct the respondent Elmsford Union Free School District to remove a certain letter dated February 3, 2011, from the petitioner's personnel file, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Lorenzo, J.), entered December 23, 2011, which denied the petition, and, in effect, dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

In New York, a tenured teacher may not be “disciplined” without being afforded the procedures set forth in Education Law § 3020–a, which requires that formal charges first be referred to the board of education for a determination of probable cause, after which the teacher is given written notice of the charges and an opportunity for a hearing (Education Law § 3020;  see Education Law § 3020–a).   However, section 3020–a does not “insulat[e] tenured teachers from all written critical comment from their supervisors” (Holt v Board of Educ. of Webutuck Cent. School Dist., 52 N.Y.2d 625, 632).   While a formal disciplinary reprimand may not be issued without compliance with section 3020–a, a critical “administrative evaluation” may properly be included in a teacher's personnel file without resort to such procedures (Holt v Board of Educ. of Webutuck Cent. School Dist., 52 N.Y.2d at 634–635).

Here, the letter the petitioner sought to have removed from his personnel file “[fell] within [the] permissible range of administrative evaluation,” and the respondent Elmsford Union Free School District did not act unlawfully in making it part of the petitioner's personnel file without complying with Education Law § 3020–a (Holt v Board of Educ. of Webutuck Cent. School Dist., 52 N.Y.2d at 633;  see Matter of O'Connor v. Sobol, 173 A.D.2d 74, 77;  TeBordo v Cold Spring Harbor Cent. School Dist., 126 A.D.2d 542, 543;  cf.  Matter of D'Angelo v. Scopetta, 19 NY3d 663, 669–670;  Myers v Chester Union Free School Dist., 300 A.D.2d 287;  Matter of Civil Serv. Empls.  Assn. v Southold Union Free School Dist., 204 A.D.2d 445, 446).   Accordingly, the Supreme Court properly denied the petition, and, in effect, dismissed the proceeding.

The parties' remaining contentions have been rendered academic in light of our determination.

MASTRO, J.P., SGROI, COHEN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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