The opinion
Zapata v Board of Educ. of the City Sch. Dist. of the
City of N.Y.
2025 NY Slip Op 30628(U)
February 21, 2025
Supreme Court, New York County
Docket Number: Index No. 160175/2024
Judge: Phaedra Perry-Bond
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 160175/2024
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/24/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. PHAEDRA F. PERRY PART 35
Justice
_ _ _ ,_ _ _ _ _ _ _ _ _ _ _ - - - - - - X
INDEX NO. 160175/2024
MARYANN ZAPATA,
MOTION DATE 01/23/2025
Petitioner,
MOTION SEQ. NO. 001
- V -
BOARD OF EDUCATION OF THE CITY SCHOOL
DISTRICT OF THE CITY OF NEW YORK, DAVID C.
BANKS IN HIS OFFICIAL CAPACITY AS CHANCELLOR DECISION + ORDER ON
OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW MOTION
YORK
Respondents.
__________ ,___________x
The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8
were read on this motion to/for ARTICLE 78 (BODY OR OFFICER)
Petitioner, Maryann Zapata ("Petitioner") brings this petition pursuant to CPLR Article
78 seeking an order and judgment ( 1) declaring that the Board of Education of the City School
District of the City of New York ("Board") (also known as the Department of Education of the
City of New York) and David C. Banks, in his official capacity as Chancellor of the City School
District of the City of New York (collectively "Respondents"), engaged in conduct that was
arbitrary, capricious, an abuse of discretion, affected by an error of law and violated a duty
enjoined upon them when Respondents failed to provide Petitioner, with sixty (60) days written
notice prior to the termination of her employment as a probationer, (2) directing Respondents to
pay petitioner all salary, benefits, and other emoluments of employment that petitioner would
have received had Respondents not unlawfully terminated her on July 1, 2024, together with
interest and costs, attorneys' fees and disbursements and (3) for such other further and different
relief this Court may deem just and proper.
160175/2024 ZAPATA, MARYANN vs. BOARD OF EDUCATION OF THE CITY SCHOOL Page 1 of 4
DISTRICT OF THE CITY OF NEW YORK ET AL
Motion No. 001
[* 1] 1 of 4
INDEX NO. 160175/2024
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/24/2025
BACKGROUND
Petitioner was appointed as a probationary teacher on September 4, 2028 and assigned to
the Thomas C. Giordano Middle School located within District 10 of Bronx, New York until her
services were discontinued effective July 1, 2024. Petitioner would have completed probation on
or about May 20, 2024.
On April 15, 2024, Petitioner received an email from the principal stating that she was
being denied tenure. The email attached a letter dated March 21, 2024 entitled, Denial of
Completion of Probation Letter ("Letter") which stated:
This is to inform you that in accordance with Section 2573 Subdivision 1 of the
State Education Law; I am denying your Certification of Completion of Probation
with the New York City Department of Education. Under the Collective Bargaining
Agreement between the Department of Education and the United Federation of
Teachers, you are entitled to the review procedures as prescribed in Article 4,
Section 4.3.3 C of the Bylaws of the Department of Education. Please be advised
that your service under this appointment shall terminate as of the close of business
60 days from the date of this letter or the probation completion date listed above,
whichever occurs first.
The March 21, 2024, letter, was not sent to the Petitioner prior to the April 15, 2024, email. The
Petitioner remained employed beyond the May 20, 2024, probation completion date listed in the
Letter.
Petitioner's services were discontinued on July 1, 2024, but Petitioner did not learn of her
discontinuance until July 10, 2024, through the employment information system where her
employment status was listed as terminated effective July 1, 2024.
160175/2024 ZAPATA, MARYANN vs. BOARD OF EDUCATION OF THE CITY SCHOOL Page 2 of 4
DISTRICT OF THE CITY OF NEW YORK ET AL
Motion No. 001
[* 2] 2 of 4
INDEX NO. 160175/2024
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/24/2025
On September 5, 2024, Petitioner timely filed a Notice of Claim with Respondents. To
date, Respondents have not made any payment on Petitioner's claims.
Petitioner filed the instant action on October 31, 2024, alleging, inter alia that the Board
engaged in conduct that was arbitrary, capricious, an abuse of discretion, affected by law, and that
they violated Education Law §2573(1)(a) by failing to notify Petitioner in writing sixty (60) days
immediately preceding the expiration of her probationary period that her employment with the
Board would be discontinued. The Respondents did not submit opposition to the petition
DISCUSSION
Education Law§ 2573(1)(a) reads in pertinent part: "Each person who is not to be
recommended for appointment on tenure shall be so notified by the superintendent of schools in
writing not later than sixty days immediately preceding the expiration of his probationary
period." (Tucker v. Board of Educ., 82 N.Y.2d 274 [1993]). The purpose underlying these notice
provisions is to allow teachers whose services are to be discontinued a period of time to seek
other employment (Matter ofZunic v Nyquist, 48 AD2d 378,380,370 NYS2d 228 [3d Dept
1975], affd on op below 40 NY2d 962, 359 NE2d 427,390 NYS2d 919 [1976]). Education Law
§ 2573(1)(a) does not specify a remedy for violation of the notice requirements; however, it has
been consistently held that the remedy is that teachers are awarded one day's pay for each day
the notice was late]; (Kahn v. New York City Dept. of Educ., 79 AD3d 521,522,915 N.Y.S.2d
26 [1st Dept 2010] [although the notice of termination was procedurally defective for failure to
provide 60 days' prior notice of discontinuance, as required by Education Law§ 2573(1)(a), that
defect does not invalidate the discontinuance or render the statute of limitations inapplicable; it
entitles a teacher to additional back pay]).
In the instant matter, Petitioner was notified she was being denied tenure via email on
April 15, 2024. That same email contained a letter dated March 21, 2024, entitled, Denial of
Completion of Probation Letter. That letter informed the Petitioner that she was being denied
tenure, that she was entitled to the review procedures and that her service would terminate at the
close of business, 60 days from the date of the letter or the probation completion, (whichever was
first) May 20, 2024. Notably, Petitioner never received the March 21, 2024, letter until the
160175/2024 ZAPATA, MARYANN vs. BOARD OF EDUCATION OF THE CITY SCHOOL Page 3 of 4
DISTRICT OF THE CITY OF NEW YORK ET AL
Motion No. 001
[* 3] 3 of 4
INDEX NO. 160175/2024
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/24/2025
April 15, 2024, email was sent to her. Indeed, attaching the back dated letter does not satisfy the
requirement for the 60-day notice required. As Respondents did not submit opposition to this
motion, it is unclear why the March 21, 2024, letter was not timely sent to the Petitioner.
The Petitioner continued in her position past May 20, 2024, thus rendering the April 15,
2024, notification null and void. Petitioner was later notified on July 10, 2024, via the
Respondent's employment information system that her employment was terminated effective
July 1, 2024. It is obvious that Petitioner did not receive the requisite 60 notification, which
should have been sent on or before May 2, 2024. The 60-day notice is mandatory, there are no
exceptions and the Respondents' failure to comply was a violation of Education Law 2573(1)(a).
Accordingly, it is
ORDERED that the petition is granted with costs, and it is further
ADJUDGED that Respondent Board failed to provide proper notice to Petitioner that it
was discontinuing her probationary service on July 1, 2024, and it is further
ADJUDGED that Respondents violated Education Law 2573(1)(a) by failing to provide
Petitioner with the requisite 60-day notice and it is further
ORDERED Respondents are directed to pay Petitioner back two months' salary with
interest, along with all benefits and emoluments of employment that she would otherwise
received, and it if further,
ORDERED that counsel for Petitioner shall serve a copy of this order on all parties along
with notice of entry within ten (10) days; and it is further
ORDERED that Respondents are directed to make payment within 20 days of receipt of a
copy of this Decision, Order and Judgment.
This constitutes the Decision and Order of the Court.
Enter: 2/21/25 PHAEDRA PERRY-BOND, J.S.C.
HO~;. __ ..-,tAF. PE~\
J.,; .
160175/2024 ZAPATA, MARYANN vs. BOARD OF EDUCATION OF THE CITY SCHOOL Page4of4
DISTRICT OF THE CITY OF NEW YORK ET AL
Motion No. 001
4 of 4
[* 4]