Motion to Amend in Ava Jacobs v. Board Of Education Of The Uniondale Union Free School District, Uniondale Union Free School District, Board Of Education Of The Nassau Board Of Cooperative Educational Services, Nassau Board Of Cooperative Educational Services, Nava Orlian, As A Necessary Party| Trellis.Law

On December 20, 2021 a Exhibit,Appendix was filed involving a dispute between Ava Jacobs, and Board Of Education Of The Nassau Board Of Cooperative Educational Services, Board Of Education Of The Uniondale Union Free School District, Nassau Board Of Cooperative Educational Services, Nava Orlian, As A Necessary Party, Uniondale Union Free School District, for Special Proceedings - CPLR Article 78 in the District Court of Nassau County.

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FILED: NASSAU COUNTY CLERK 03/28/2022 08:06 PM INDEX NO. 615862/2021
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
------------------------------------------------------------------------X
In the Matter of the Application of

AVA JACOBS, Index No.: 615862/2021

Petitioner, AMENDED
VERIFIED ANSWER
-against- AND OBJECTIONS IN
POINT OF LAW
BOARD OF EDUCATION OF THE
UNIONDALE UNION FREE SCHOOL DISTRICT,
UNIONDALE UNION FREE SCHOOL DISTRICT,
BOARD OF EDUCATION OF THE NASSAU
BOARD OF COOPERATIVE EDUCATIONAL
SERVICES, NASSAU BOARD OF COOPERATIVE
EDUCATIONAL SERVICES, and NAVA ORLIAN,
As a necessary Party,

Respondents,

For an Order and Judgment Pursuant to Article 78
Of the New York Civil Practice Law and Rules.
------------------------------------------------------------------------X

The Respondents, Board of Education of the Nassau Board of Cooperative

Educational Services, the Nassau Board of Cooperative Educational Services and Nava

Orlian (hereinafter the “Nassau BOCES” and if specifically necessary as separately

“Orlian”), by and through its attorneys, INGERMAN SMITH, L.L.P., for its Amended

Verified Answer to the Verified Petition filed by Ava Jacobs (hereinafter the

“Petitioner”), alleges as follows:

1. The Nassau BOCES denies the allegations set forth in Paragraph 1 of the

Verified Petition.
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2. The Nassau BOCES admits the allegations set forth in Paragraphs 2 and 6

of the Verified Petition.

3. The Nassau BOCES denies it has any knowledge or information sufficient

to form a belief as to the allegations contained in Paragraphs 3, 4, 5, 12, and 14-22.

4. Paragraph 7 of the Verified Complaint calls for a legal conclusion for

which no response is required and the Nassau BOCES refers all questions of law to the

Court.

5. Paragraph 8 of the Verified Complaint calls for a legal conclusion for

which no response is required and the Nassau BOCES refers all questions of law to the

Court. The Nassau BOCES denies any allegation that it abolished Petitioner’s teaching

position. The Petitioner had been an employee of Uniondale Union Free School District

(“Uniondale Schools”).

6. The Nassau BOCES admits the allegations set forth in Paragraphs 9-11 of

the Verified Petition to the extent that it received a Notice of Claim from Petitioner and

no payment was made to Petitioner by the Nassau BOCES.

7. The Nassau BOCES admits the allegations set forth in Paragraph 13 of the

Verified Petition to the extent that it states the Part 30 Rules of the Board of Regents

identifies subject areas for purposes of tenure. To the extent the Paragraph claims

wrongdoing by the Nassau BOCES, such claim is denied.

8. The Nassau BOCES denies it has any knowledge or information sufficient

to form a belief as to the allegations contained Paragraph 23. To the extent Petitioner

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alleges there was an Education Law Section 3014-a takeover of the “Program” by the

Nassau BOCES such allegation is denied.

9. The Nassau BOCES denies the allegations set forth in Paragraphs 24 and

25 of the Verified Petition that there was an Education Law Section 3014-a takeover of

the “Program” by the Nassau BOCES. The Nassau BOCES has and does service

students from its component school district, that is, Uniondale Schools. Some of those

students receive services due to visual impairment. Such services take place at

Uniondale Schools or private schools/institutions where the Uniondale students attend.

10. The Nassau BOCES admits the allegations set forth in Paragraphs 26, 27

and 28 of the Verified Petition, in that there were communications between Petitioner

and the Nassau BOCES in and about August and September 2021. The Nassau BOCES

denies any allegations there was an Education Law Section 3014-a takeover of the

“Program” by the Nassau BOCES.

11. The Nassau BOCES denies it has any knowledge or information sufficient

to form a belief as to the allegations contained in Paragraph 29 as to what Petitioner

saw. Nassau BOCES denies that Respondent was entitled to a position at the Nassau

BOCES.

12. The Nassau BOCES admits that the letter identified in Paragraphs 30, 31

and 32 were sent to Petitioner. However, the Nassau BOCES began to look into the

matter internally and with legal counsel. Based upon the facts of this matter, there was

no “take over”, thus the letter was rescinded (Petitioner Exhibit H).

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13. The Nassau BOCES admits the allegations set forth in Paragraphs 30, 31

and 32 of the Verified Petition, in that the Nassau BOCES sent a letter to Petitioner

dated September 22, 2021 (Petitioner Exhibit E) and a follow-up letter voiding the first

on December 3, 2021 (Petitioner Exhibit H). There were communications between

Petitioner and the Nassau BOCES in and about August and September 2021. The

Nassau BOCES denies any allegations that there was an Education Law Section 3014-a

takeover of the “Program” by the Nassau BOCES.

14. The Nassau BOCES denies it has any knowledge or information sufficient

to form a belief as to the allegations contained in Paragraph 33 as to what Uniondale

Schools did or did not do. Nassau BOCES denies Petitioner was entitled to a position at

the Nassau BOCES nor a position on the Preferred Eligible List.

15. The Nassau BOCES admits the allegations contained in Paragraphs 34, 35

and 36 concerning the appointment of Nava Orlian on September 23, 2021. Nassau

BOCES denies Petitioner was entitled to a position at the Nassau BOCES nor a position

on the Preferred Eligible List.

16. The Nassau BOCES admits the allegations contained in Paragraph 37, as

there was no takeover under the law, Petitioner had no right to any position at the

Nassau BOCES.

17. The Nassau BOCES denies it has any knowledge or information sufficient

to form a belief as to the allegations contained in Paragraph 38 as to when Petitioner

received the December 3, 2021 letter.

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18. The Nassau BOCES admits to the allegations contained in Paragraph 39.

19. The Nassau BOCES admits the allegations contained in Paragraph 40 that

the Petitioner’s counsel sent a letter dated December 7, 2021, but as there was no

takeover under the law, Petitioner had no right to any position at the Nassau BOCES.

20. The Nassau BOCES denies it has any knowledge or information sufficient

to form a belief as to the allegations contained in Paragraphs 41, 42, 43, 44 and 45 and

further denies the relevance of a different matter. Nassau BOCES admits that Petitioner

worked for the Nassau BOCES over ten (10) years ago.

21. The Nassau BOCES denies it has any knowledge or information sufficient

to form a belief as to the allegations contained in Paragraph 46-49.

22. The Nassau BOCES denies the allegations contained in Paragraphs 51, 52,

53 and 54.

23. The Nassau BOCES repeats, realleges, and refers to each of its responses

to Paragraphs 1 through 54 with the same force and effect as though fully set forth

herein at length and to the extent that the allegations to which said responses are

repeated, realleged and referred to by paragraphs 47 and 50 and further denies the

WHEREFORE clause.

AS AND FOR ITS FIRST OBJECTION
IN POINT OF LAW, RESPONDENT ALLEGES:

24. The Petitioner has failed to state a claim upon which relief may be granted

and therefore, the Nassau BOCES requests that the Verified Petition be dismissed in its

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entirety based upon an objection in point of law pursuant to N.Y. C.P.L.R. § 3211(a)(1),

(2) and (7) and/or N.Y. C.P.L.R. § 7804(f) and (g).

25. The Verified Petition has requested relief pursuant to Article 78 of the

CPLR, the scope of review under which is extremely limited. Specifically, pursuant to

CPLR Section 7803 “[t]he only questions that may be raised….are: 1. whether the body

or officer failed to perform a duty enjoined upon it by law; or 2. whether the body or

officer proceeded, is proceeding or is about to proceed without or in excess of

jurisdiction; or 3. whether a determination was made in violation of lawful procedure,

was affected by an error of law or was arbitrary and capricious or an abuse of

discretion, including abuse of discretion as to the measure or mode of penalty or

discipline imposed; or 4. whether a determination was made as a result of a hearing

held, and at which evidence was taken, pursuant to direction by law is, on the entire

record, supported by substantial evidence. [or] 5. A proceeding to review the final

determination or order of the state review officer pursuant to subdivision three of

section forty-four hundred four of the education law shall be brought pursuant to

article four of this chapter and such subdivision….” See CPLR Section 7803.

26. While the Petitioner requests an order pursuant to Article 78 of the Civil

Practice Law and Rules granting her Section 3014-a rights and an automatic

appointment to a teaching position with tenure and back pay, the Nassau BOCES

submits that the Verified Petition has failed to state a claim upon which relief may be

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granted under any of the aforementioned subdivisions of CPLR Section 7803 and thus,

the Verified Petition should be dismissed in its entirety.

27. In the instant proceeding, Nassau BOCES did not “take over the

operations of a program formerly provided by” Uniondale Schools. Thus, Section 3014-

a is not triggered. No program was taken over. There was no agreement, promise or

discussion between the Nassau BOCES and Uniondale Schools regarding the “take

over” of a “program.” Instead, the Uniondale Schools has continued what it has done

since at least 2014. Uniondale Schools contracts with the Nassau BOCES to provide a

certain service to Uniondale students – in this case, vision services by Nassau BOCES

teachers. Upon information and belief, the Uniondale students who require vision

services are otherwise being educated by the Uniondale Schools Special Education

Program. Importantly, Uniondale Schools has not given up or transferred its Special

Education Program to the Nassau BOCES or to anyone else for that matter.

28. Moreover, the vision services being provided through contract with the

Nassau BOCES are merely one type of special education “related services” defined by

regulation. 34 CFR Section 300.34(a). This one service provision cannot account for a

“take over” of a “program” under the law. There cannot be a “program” takeover as

there remains a Special Education Program at Uniondale Schools.

29. Moreover, a determination on whether there was a “take over” is

premature. There are factual questions as to good faith basis of the “take over” and

looking into Petitioner’s work history and abilities must be addressed. Petitioner is

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asking the Nassau BOCES to take her on after her having worked for ten-plus years at

Uniondale Schools without such consideration. Such could not have been the intent of

the drafters of 3014-a/3014-b.

30. The Board of Education of the School District did not act arbitrary or

capricious manner. Further, Petitioner has not shown a legal basis for the relief she

claims. As a result, this matter should be dismissed in its entirety.

AS AND FOR ITS SECOND OBJECTION
IN POINT OF LAW, RESPONDENT ALLEGES:

31. Petitioner has further failed to prove entitlement to Orlian’s position at the

Nassau BOCES.

32. The Petitioner is not entitled to the 0.5 full-time equivalent (FTE) teaching

position being held by Nava Orlian. Even if the Court determines that there was a

“take over” of a program, Petitioner is, at best, entitled to be placed on a preferred

eligible list after the abolishment became effective.

33. Petitioner was first told on August 30, 2021 that her position was going to

be abolished. She was told then as well that the abolishment would be voted upon and

effective October 10, 2021 (Petition Para. 19 and Petitioner Exhibit A). There is no

allegation made that Nassau BOCES was aware of the decision of Uniondale Schools

prior to August 30, 2021.

34. What did happen prior to Uniondale Schools informing Petitioner of her

October 2021 termination, was the following. Nassau BOCES had already posted on

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OLAS that it was seeking a teacher for the visually impaired. The posting for the

position was July 6, 2021. On August 16, 2021 Orlian was offered the teaching position

at the Nassau BOES and the offer was accepted on August 26, 2021. Onboarding and

orientation was completed in August of 2021 and Orlian started work on September 1,

2021. All of this is well before the abolishment. (Dulovic Para. 3-7). And the hiring and

the start of Orlian working at the Nassau BOCES occurred well before September 9,

2021, when the Nassau BOCES teachers began providing services to the two Uniondale

Students that month (David Para. 10). Even if there was a “take over” it did not come to

pass until October 10, 2021 – the date Respondent no longer had a job at Uniondale

Schools.

35. Accordingly, Petitioner cannot claim rights to Orlian’s position. For the

foregoing reasons, the Verified Petition should be dismissed in its entirety.

36. As a result, the School District’s actions were not arbitrary and capricious

and the Verified Petition should be dismissed.

AS AND FOR ITS THIRD OBJECTION
IN POINT OF LAW, RESPONDENT ALLEGES:

37. In this circumstance, the Petitioner’s claim asserting Section 3014-a rights

should be before the Commissioner of Education under the doctrine of primary

jurisdiction.

38. This proceeding, alleging violations of Sections 3014-a of the Education

Law, should be dismissed because primary jurisdiction over the issues surrounding the

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abolishment of Petitioner’s employment by Uniondale Schools and subsequent claim of

an alleged “take over” is with the Commissioner of Education. The Commissioner of

Education is entrusted with the enforcement of the education law and rules and when

the determination depends upon the specialized knowledge and experience of the

Commissioner of Education, a court should refrain from exercising jurisdiction. Patti

Ann H. v. New York Med. Coll., 88 A.D.2d 296, 297, 453 N.Y.S.2d 196 (2d Dep’t 1982)

and Hessney v. Bd. of Ed. of the Public School of Tarrytowns, 228 A.D.2d 954, 955 644

N.Y.S.2d 826 (3d Dep’t 1996).

39. Respectfully, the Commissioner of Education should be afforded primary

jurisdiction when questions regarding tenure rights and seniority arise. See Markow-

Brown v. Bd. of Educ. of Port Jefferson Public Schools, 301 A.D.2d 653, 754 N.Y.S.2d 326

(2d Dep’t 2003), appeal denied, 100 N.Y.2d 512 (2003).

40. Due to the two main issues of this matter, the proceeding is distinguished

from Barrone v. BOCES of Suffolk County, 125 A.D.2d 305, 508 N.Y.S.2d 587 (2d Dep’t.

1986). The instant matter differs from Barrone in one important respect. As noted

above, there is a question of fact as to the rationale for the abolishment of the

Petitioner’s position at Uniondale Schools – was itmade in “bad faith” in violation of

the law and if so, that determination made in “bad faith

has now negatively impacted the Nassau BOCES own operations and rights to hire its

own staff.

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41. The Commissioner of Education is uniquely positioned to make factual

determinations as to whether a teacher was terminated in “bad faith” by a public school

district. The Commissioner is also uniquely positioned to make factual determinations

as to whether under such circumstances that a proper “take over” of a program took

place under Section 3014-a of the Education Law.

42. As such, it is respectfully submitted the Court should decline exercising

its jurisdiction over the matter and dismiss the Petition.

NASSAU BOCES APPLICATION FOR DISCOVERY

43. Through this filing and the accompanying Notice of Motion, and all the

papers submitted hereto, the Nassau BOCES and Orlian seek leave to request discovery

from Uniondale Schools and Petitioner.

44. N.Y. C.P.L.R. Section 408 allows for a party to seek leave of the Court for

discovery in a Special Proceeding such as the instant.

45. Upon information and belief, discovery in the form of

records/correspondence maintained by Uniondale Schools would provide the rationale

for the Uniondale Schools’ decision to excess Petitioner. In addition, deposition

testimony of administrators from Uniondale Schools who have knowledge of the

decision and rationale for such, are necessary for the Nassau BOCES’ defense of this

matter and for the Court to determine the validity of Section 3014-a rights. Moreover,

Petitioner herself should be subject to deposition as to what she was told about the

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abolishment of her position and her understanding of why she was reassigned to home

from August 30, 2021 to October 10, 2021.

46. In addition, discovery should be allowed to provide the Nassau BOCES to

consider Petitioner’s prior employment history and whether that prior employment

history provides evidence to justify the employment rights at the Nassau BOCES.

47. It is respectfully submitted that based upon the records submitted thus

far, and the questions surrounding this abolishment, the Court cannot fully and fairly

determine the merits of the case without permitting the Nassau BOCES to conduct

discovery. Nor is the Nassau BOCES able to fully defend itself from the claims.

48. Accordingly, it is respectfully requested that discovery be permitted

allowing the Nassau BOCES to depose witnesses and make requests for document

production.

WHEREFORE, it is respectfully submitted that an Order is issued:

1. pursuant to N.Y. C.P.L.R. § 3211(a)(1), (2) and (7) and/or N.Y. C.P.L.R. § 7804(f)

and (g), dismissing the Verified Petition on grounds that the Verified Petition

fails to state any cognizable claim inasmuch as Petitioner failed to state a claim

upon which relief can be granted, there is sufficient evidence to grant dismissal

and/or the Commissioner of Education has primary jurisdiction over this matter;

and

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2. pursuant to N.Y. C.P.L.R. Section 408 allowing the for a party to seek leave of the

Court for discovery in a Special Proceeding such as the instant; and

3. granting Respondent Nassau BOCES and Orlian’s costs, disbursements,

attorneys’ fees, and together with such other and further relief which may appear

just and proper.

Dated: Hauppauge, New York
March 28, 2022

Yours, etc.

INGERMAN SMITH, L.L.P.

By: _____________________
Michael G. McAlvin
Attorneys for Respondents
BOARD OF EDUCATION OF THE NASSAU
BOARD OF COOPERATIVE EDUCATIONAL
SERVICES, THE NASSAU BOARD OF
COOPERATIVE EDUCATIONAL SERVICES
and NAVA ORLIAN
150 Motor Parkway, Suite 400
Hauppauge, New York 11788
(631) 261-8834

TO: Via E-File

ROBERT T. REILLY
NYSUT
Of counsel: JACQUELYN HADAM
800 Troy-Schenectady Road
Latham, New York 12110-2455
(518) 213-6000

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JOHN SHEAHAN
Law Offices of Guercio & Guercio, LLP
77 Conklin Street
Farmingdale, NY 11735
(516) 694-3000

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STATE OF NEW YORK )

) ss.:

COUNTY OF SUFFOLK )

MICHAEL G. McALVIN, being duly sworn deposes and says:

I am associated with the law firm INGERMAN SMITH, LL.P., attorneys for

BOARD OF EDUCATION OF THE NASSAU BOARD OF COOPERATIVE

EDUCATIONAL SERVICES, THE NASSAU BOARD OF COOPERATIVE

EDUCATIONAL SERVICES and NAVA ORLIAN, Respondents in with within matter; I

have read the foregoing Amended Verified Answer and know the contents thereof; the

same is true to my own knowledge, except as to the matters therein stated to be alleged

on information and belief, and as to those matters I believe it to be true. This

verification is made by me because the above party is a municipal corporation and as

such anyone having knowledge of the facts may so verify. The grounds of my belief as

to all matters not stated upon my own knowledge are as follows:

Books, records, papers and documents of Respondents Board of Education of the

Nassau Board of Cooperative Educational Services, the Nassau Board of Cooperative

Educational Services and Nava Orlian.

MICHAEL G. McALVIN

Sworn to before me this
28th of 2022
day March,

NOTARY PUBLIC

MICHAEL D RANIETE
Notary Public, Stateof New York
No. 02RA6378349
Qualifiedin SuffolkCounty 15
My Commission Expires July23,20

Case Info

Judge

Danielle M Peterson Track Judge’s New Case

Case No.

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Document Filed Date

March 28, 2022

Case Filing Date

December 20, 2021

County

Parties

Ava Jacobs Plaintiff
BOARD OF EDUCATION OF THE NASSAU BOARD OF COOPERATIVE EDUCATIONAL SERVICES Defendant
BOARD OF EDUCATION OF THE UNIONDALE UNION FREE SCHOOL DISTRICT Defendant
HADAM, JACQUELYN A. Attorney for the Plaintiff
KLEINBERG, ADAM I Attorney for the Defendant
MCALVIN, MICHAEL GERARD Attorney for the Defendant
NASSAU BOARD OF COOPERATIVE EDUCATIONAL SERVICES Defendant
NAVA ORLIAN, as a necessary party Defendant
SHEAHAN, JOHN PATRICK Attorney for the Defendant
UNIONDALE UNION FREE SCHOOL DISTRICT Defendant
WEISBORD, CHELSEA ELLA Attorney for the Defendant
ROBERT REILLY Attorneys for Plaintiffs
MICHAEL MCALVIN Attorney

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Exhibit,Appendix: Ava Jacobs v. Board Of Education Of The Uniondale Union Free School District, Uniondale Union Free School District, Board Of Education Of The Nassau Board Of Cooperative Educational Services, Nassau Board Of Cooperative Educational Services, Nava Orlian, As A Necessary Party

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Parties