The opinion
Moore v Board of Educ. of the City Sch. Dist. of the
City of N.Y.
2024 NY Slip Op 33080(U)
September 3, 2024
Supreme Court, New York County
Docket Number: Index No. 160087/2020
Judge: Debra A. James
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
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INDEX NO. 160087/2020
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 09/03/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. DEBRA A. JAMES PART 59
Justice
---------------------------------------------------------------------------------X INDEX NO. 160087/2020
JOMANI MOORE,
MOTION DATE 10/25/2023
Petitioner,
MOTION SEQ. NO. 001
For a Judgment pursuant to Article 78 of the Civil Practice
Laws and Rules,
-v-
ORDER –
BOARD OF EDUCATION OF THE CITY SCHOOL
DISTRICT OF THE CITY OF NEW YORK, and RICHARD A.
RESETTLED/AMENDED
CARRANZA, in his official capacity as Chancellor of the City (MOTION RELATED)
School District of the City of New York,
Respondents.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 9, 10, 13, 14, 15,
16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 30, 32, 33, 34, 35, 36, 37, 38, 39
were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) .
Upon the foregoing documents, it is
ORDERED that the Order dated April 25, 2024, resolving motion
sequence number 001 in this proceeding, is VACATED, RESETTLED, AND
CORRECTED, nunc pro tunc, pursuant to CPLR § 5019(a) [see Kiker v
Nassau County, 85 NY2d 879 (1995)] as follows:
ORDER
Upon the foregoing documents, it is
ORDERED and ADJUDGED that the petition of JOMANI MOORE,
pursuant to CPLR Article 78, is GRANTED in part, to the extent
that the petitioner is awarded 23 days salary, and it is further
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NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 09/03/2024
ORDERED that matter is remanded to respondents for the
calculation of an award of 23 days’ salary; and it is further
ORDERED to the extent that petitioner seeks attorneys’ fees
and interest, such application is denied and dismissed (see Bello
v Roswell Park Cancer Institute, 5 NY3d 170 [2005]); and it is
further
ORDERED that this matter is remanded to respondents for the
calculation of an award of 23 days’ salary to petitioner, which
respondents shall pay petitioner, forthwith.
7DECISION
Petitioner Jomani Moore (“Moore”), a probationary teacher,
commenced this proceeding against the respondents Board of
Education of the City School District of the City of New York, and
Richard A. Carranza, in his official capacity as Chancellor of the
City School District of the City of New York (collectively, the
“Board”) seeking an award of salary for 30 days due to the Board’s
violation of the 30-day requirement set forth in Education Law §
3019.
“Education Law § 3019–a requires school authorities to give
probationary teachers written notice of termination at least 30
days before the effective date of termination.” Matter of Vetter
v Bd. of Educ., 14 NY3d 729, 731 (2010).
On June 22, 2020, the Board, by its District 75
Superintendent, notified petitioner that
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“This is to inform you that on June 22, 2020, I will
review and consider whether your services as a
probationer be discontinued as of the close of business
July 22, 2020.
* * *
[Y]ou may submit a written response to the reasons no
later than seven (7) days prior to the date of my
consideration and final determination of your
Discontinuance.”
Then, by letter dated July 15, 2020, the Board, by its
District 75 Superintendent, wrote petitioner that:
“This is to inform you that after reviewing written
response received on July 15, 2020. (sic) I reaffirm
your Discontinuance of Probationary service effective
close of business July 22, 2020.”
(NYSCEF Document Number 003).
The employment and payment records submitted by the Board
establish that Moore remained on the Board’s payroll until
September 1, 2020 (NYSCEF Document Numbers 014-016). This court
finds that the letter dated June 20, 2022 was equivocal whether
Moore’s probationary teaching services would be discontinued
effective July 22, 2020, which renders such letter ineffective
to give petitioner the requisite thirty days-notice. Such
equivocation is compounded by the Board’s providing that
petitioner “may submit a written response to the reasons no
later than seven days before the date of my consideration and
final determination of your Discontinuance” unless the
Superintendent’s consideration of same was illusory.
The letter dated July 15, 2020 letter provided Moore only 7
days’ notice of his termination, 23 days short of the 30-day
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requirement set forth in Education Law § 3019. See Matter of
Vetter, 14 NY3d at 731 (2010).
The Board argues that even if it was deficient in providing
notice of the discontinuance, Moore suffered no lost compensation,
as the Board paid him an additional 48 days of salary, as he
remained on the Board’s payroll until September 1, 2020. However,
the Board concedes that the salary Moore received between July 22,
2020 and September 1, 2020 constituted deferred compensation that
was earned during the school year, to which Moore was already
entitled. (NYSCEF Documents 17, ¶ 7; 24 ¶ 7; and 25, p. 11, L2,
L5). Nor is the Board’s argument about summer vacation of any
moment. See Matter of Vetter, supra, at p. 731.
Based on the foregoing, Moore is entitled to an award of 23
days salary pursuant to Education Law § 3019.
9/3/2024
DATE DEBRA A. JAMES, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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