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FILED: NEW YORK COUNTY CLERK 05/08/2024 02:16 PM INDEX NO. 154265/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/08/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
_________________________________________________
ALICIA SARGEANT,
Petitioner,
- against -
Index No.
BOARD OF EDUCATION OF THE CITY SCHOOL
DISTRICT 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,
Respondents.
_________________________________________________
MEMORANDUM OF LAW ON BEHALF OF PETITIONER
ROBERT T. REILLY
Attorney for Petitioner-Alicia Sargeant
120 Broadway, Suite 1360
New York, NY 10271
(518) 868-1248
deena.mikhail@nysut.org
DEENA S. MIKHAIL
Of Counsel
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TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 2
ARGUMENT .................................................................................................................................. 3
A. RESPONDENTS VIOLATED THE EDUCATION LAW DUE TO THE FAILURE TO
PROVIDE THE SIXTY DAYS’ NOTICE PRIOR TO PETITIONER’S TERMINATION ... 3
B. PETITIONER IS ENTITLED TO ONE DAY’S PAY FOR EACH DAY
RESPONDENTS’ NOTICE WAS LATE ................................................................................ 4
CONCLUSION ............................................................................................................................... 5
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TABLE OF AUTHORITIES
PAGE No.
Cases
Matter of Lehman v. Bd. of Educ., 82 A.D. 2d 832, 834 (2d Dep’t 1981)...................................... 4
Matter of Maria P. Tucker v. Bd. of Educ., Community School Dist. No. 10, 82 N.Y.2d 274, 277
(1993) ...................................................................................................................................... 3, 4
Matter of Pascal v. Bd. of Educ., 100 A.D. 2d 622, 624 (2d Dep’t 1984)...................................... 4
Matter of Zunic v. Nyquist, 48 A.D. 2d 378, 380 (3d Dep’t 1975) ................................................. 4
Statutes
Education Law § 2573(1)(a) ........................................................................................................... 3
Education Law § 3813 .................................................................................................................... 4
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
_________________________________________________
ALICIA SARGEANT,
Petitioner,
- against -
Index No.
BOARD OF EDUCATION OF THE CITY SCHOOL
DISTRICT 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,
Respondents.
_________________________________________________
PRELIMINARY STATEMENT
This is a special proceeding brought pursuant to Article 78 of the Civil Practice Law and
Rules (“CPLR”) seeking an order and judgment (1) declaring that the Board of Education of the
City School District of the City of New York (also known as Department of Education of the City
of New York) (“Board”) and David C. Banks, in his official capacity as Chancellor of 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 Respondents by law when Respondents failed to provide Petitioner, Alicia Sargeant,
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 or about
March 5, 2024, together with interest thereon, along with costs, attorneys’ fees and disbursements
of this proceeding; and (3) for such other, further and different relief as this Court may deem just
and proper.
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STATEMENT OF FACTS
Respondent Board appointed Petitioner to a probationary attendance teacher on or about
March 5, 2018. Ver. Pet. at ¶ 7. At all relevant times, Respondent Board assigned Petitioner to
District 13. Petitioner remained at this assignment until Respondents discontinued her
probationary appointment. Ver. Pet. at ¶ 8. Respondent Board extended Petitioner’s probationary
period on two different occasions. Ver. Pet. at ¶ 9. Upon information and belief, Respondent would
have completed her probationary period on or about March 5, 2024. Ver. Pet. at ¶ 10.
By e-mail dated February 29, 2024 (“E-mail”), Respondents provided Petitioner with a
backdated letter, dated January 5, 2024 (“Letter”) from Janice Ross, Superintendent of District 13,
informing her that her probationary appointment would be discontinued effective the close of
business sixty (60) days from the date of the Letter or the probation completion date, whichever
occurs first. Ver. Pet. at ¶ 11; See also Exhibit A attached to the Verified Petition. The Letter
specifically provides that, “. . .in accordance with Section 2573 Subdivision 1 of the State
Education Law, I am denying your Certification of Completion of Probation in Community School
District 25.” Ver. Pet. at ¶ 12.
Respondents failed to provide Petitioner with the January 5, 2024 Letter prior to sending it
to her via the E-mail dated February 29, 2024. Ver. Pet. at ¶ 13. Prior to the February 29, 2024
Letter discontinuing Petitioner’s service, effective March 5, 2024, Respondents did not provide
Petitioner sixty (60) days’ written notice that she was being denied certification of the completion
of her probationary service as an attendance teacher with Respondent Board. Ver. Pet. at ¶ 14.
Respondents only provided Petitioner with approximately (5) calendar days’ notice that they had
denied her completion of probation. Ver. Pet. at ¶ 15. On April 3, 2024, Petitioner timely filed a
Notice of Claim with Respondents by serving a copy via electronic service upon the Office of
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Corporation Counsel of the City of New York, which is authorized to receive service on behalf of
Respondents. Ver. Pet. at ¶ 16; See also Exhibit B attached to the Verified Petition. Upon
information and belief, at the time of filing, it will have been approximately thirty (30) days since
Petitioner filed a Notice of Claim with Respondents, and Respondents have neglected or refused
to make an adjustment or payment on said claim. Ver. Pet. at ¶ 17.
ARGUMENT
A. RESPONDENTS VIOLATED THE EDUCATION LAW DUE
TO THE FAILURE TO PROVIDE THE SIXTY DAYS’
NOTICE PRIOR TO PETITIONER’S TERMINATION
Education Law § 2573(1)(a) provides that, “[e]ach 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 (60) days immediately preceding the expiration of his probationary period.” See Matter
of Maria P. Tucker v. Bd. of Educ., Community School Dist. No. 10, 82 N.Y.2d 274, 277 (1993)
(stating that a notice requirement is “founded on reasons of practicality and fairness to
probationary teachers” and enables teachers “to seek other employment”). In Tucker, the Court of
Appeals determined that § 2573(1)(a), “… requires sixty (60) days’ notice whenever a
probationary teacher is being denied tenure irrespective of the reasons for the tenure denial or
when those reasons arise.” Id. at 281. The petitioner received a discontinuance letter on June 6,
1990, eight days before her probationary period was to end. Id. The Court reasoned, based on the
plain language of § 2573, that petitioner was entitled to pay corresponding to the number of days
for which she was not provided with the statutorily required sixty (60) days’ notice. Id.
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B. PETITIONER IS ENTITLED TO ONE DAY’S PAY FOR
EACH DAY RESPONDENTS’ NOTICE WAS LATE
Courts have consistently held that the appropriate remedy for a teacher who is not notified
within the statutorily mandated period is an award of one (1) day’s pay for each day the notice was
late. Matter of Zunic v. Nyquist, 48 A.D. 2d 378, 380 (3d Dep’t 1975); Matter of Pascal v. Bd. of
Educ., 100 A.D. 2d 622, 624 (2d Dep’t 1984), Matter of Lehman v. Bd. of Educ., 82 A.D. 2d 832,
834 (2d Dep’t 1981); Matter of Tucker, 82 N.Y.2d 274, 278 (1993).
In the instant case, Petitioner was not provided with notice of her discontinuance effective
March 5, 2024, until February 29, 2024, evidenced by the February 29, 2024 E-mail. Ver. Pet. at
¶ 11-14; Ver. Pet., Exhibit A. Upon information and belief, Petitioner would have completed her
probationary period on March 5, 2024. Ver. Pet. at ¶ 10. Since Petitioner was not provided with
sixty (60) days’ written notice prior to the termination of her probationary services, Petitioner is
entitled to all salary, benefits, and other emoluments of employment, together with interest thereon,
that Petitioner would have received had Respondents not unlawfully terminated and removed her
from payroll without the proper notice.
Pursuant to Education Law § 3813, a party may bring an action against Respondents if
Respondent Board of Education has refused to make a payment for thirty (30) days after
presentment of a verified written claim. In pertinent part, Education Law § 3813 (1) provides that
such an action can proceed if “the officer or body having the power to adjust or pay said claim has
neglected or refused to make an adjustment or payment thereof for thirty days after such
presentment.” On April 3, 2024, Petitioner served Respondents with the Verified Notice of Claim,
which is attached to the Verified Petition as Exhibit B. Respondents have neglected to issue to
Petitioner the required pay and all other benefits and emoluments of employment.
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Accordingly, Respondents’ failure to provide Petitioner with sixty (60) days’ written notice
of discontinuance requires Respondents to pay Petitioner her salary, along with all other benefits
and emoluments of employment that he otherwise would have received.
CONCLUSION
Based upon the foregoing, this Court should grant judgment declaring that Respondents
failed to provide Petitioner with the proper statutory notice of discontinuance and order
Respondents to pay Petitioner all salary, benefits, and other emoluments of employment, together
with interest thereon, that petitioner would have received had Respondents not unlawfully
terminated her on or about March 5, 2024, with only giving her notice days immediately preceding
the expiration of her probationary period, and for such other, further and different relief as this
Court may deem just and proper.
Dated: May 3, 2024
New York, New York
Respectfully submitted,
ROBERT T. REILLY
Attorney for Petitioner
120 Broadway, Suite 1360
New York, NY 10271
(518) 868-1248
deena.mikhail@nysut.org
By: Deena S. Mikhail
DEENA S. MIKHAIL
Of Counsel
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Preview
FILED: NEW YORK COUNTY CLERK 05/08/2024 02:16 PM INDEX NO. 154265/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/08/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK _________________________________________________ ALICIA SARGEANT, Petitioner, - against - Index No. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT 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, Respondents. _________________________________________________ MEMORANDUM OF LAW ON BEHALF OF PETITIONER ROBERT T. REILLY Attorney for Petitioner-Alicia Sargeant 120 Broadway, Suite 1360 New York, NY 10271 (518) 868-1248 deena.mikhail@nysut.org DEENA S. MIKHAIL Of Counsel 1 of 8 FILED: NEW YORK COUNTY CLERK 05/08/2024 02:16 PM INDEX NO. 154265/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/08/2024 TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................. 2 ARGUMENT .................................................................................................................................. 3 A. RESPONDENTS VIOLATED THE EDUCATION LAW DUE TO THE FAILURE TO PROVIDE THE SIXTY DAYS’ NOTICE PRIOR TO PETITIONER’S TERMINATION ... 3 B. PETITIONER IS ENTITLED TO ONE DAY’S PAY FOR EACH DAY RESPONDENTS’ NOTICE WAS LATE ................................................................................ 4 CONCLUSION ............................................................................................................................... 5 i 2 of 8 FILED: NEW YORK COUNTY CLERK 05/08/2024 02:16 PM INDEX NO. 154265/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/08/2024 TABLE OF AUTHORITIES PAGE No. Cases Matter of Lehman v. Bd. of Educ., 82 A.D. 2d 832, 834 (2d Dep’t 1981)...................................... 4 Matter of Maria P. Tucker v. Bd. of Educ., Community School Dist. No. 10, 82 N.Y.2d 274, 277 (1993) ...................................................................................................................................... 3, 4 Matter of Pascal v. Bd. of Educ., 100 A.D. 2d 622, 624 (2d Dep’t 1984)...................................... 4 Matter of Zunic v. Nyquist, 48 A.D. 2d 378, 380 (3d Dep’t 1975) ................................................. 4 Statutes Education Law § 2573(1)(a) ........................................................................................................... 3 Education Law § 3813 .................................................................................................................... 4 ii 3 of 8 FILED: NEW YORK COUNTY CLERK 05/08/2024 02:16 PM INDEX NO. 154265/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/08/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK _________________________________________________ ALICIA SARGEANT, Petitioner, - against - Index No. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT 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, Respondents. _________________________________________________ PRELIMINARY STATEMENT This is a special proceeding brought pursuant to Article 78 of the Civil Practice Law and Rules (“CPLR”) seeking an order and judgment (1) declaring that the Board of Education of the City School District of the City of New York (also known as Department of Education of the City of New York) (“Board”) and David C. Banks, in his official capacity as Chancellor of 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 Respondents by law when Respondents failed to provide Petitioner, Alicia Sargeant, 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 or about March 5, 2024, together with interest thereon, along with costs, attorneys’ fees and disbursements of this proceeding; and (3) for such other, further and different relief as this Court may deem just and proper. 1 4 of 8 FILED: NEW YORK COUNTY CLERK 05/08/2024 02:16 PM INDEX NO. 154265/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/08/2024 STATEMENT OF FACTS Respondent Board appointed Petitioner to a probationary attendance teacher on or about March 5, 2018. Ver. Pet. at ¶ 7. At all relevant times, Respondent Board assigned Petitioner to District 13. Petitioner remained at this assignment until Respondents discontinued her probationary appointment. Ver. Pet. at ¶ 8. Respondent Board extended Petitioner’s probationary period on two different occasions. Ver. Pet. at ¶ 9. Upon information and belief, Respondent would have completed her probationary period on or about March 5, 2024. Ver. Pet. at ¶ 10. By e-mail dated February 29, 2024 (“E-mail”), Respondents provided Petitioner with a backdated letter, dated January 5, 2024 (“Letter”) from Janice Ross, Superintendent of District 13, informing her that her probationary appointment would be discontinued effective the close of business sixty (60) days from the date of the Letter or the probation completion date, whichever occurs first. Ver. Pet. at ¶ 11; See also Exhibit A attached to the Verified Petition. The Letter specifically provides that, “. . .in accordance with Section 2573 Subdivision 1 of the State Education Law, I am denying your Certification of Completion of Probation in Community School District 25.” Ver. Pet. at ¶ 12. Respondents failed to provide Petitioner with the January 5, 2024 Letter prior to sending it to her via the E-mail dated February 29, 2024. Ver. Pet. at ¶ 13. Prior to the February 29, 2024 Letter discontinuing Petitioner’s service, effective March 5, 2024, Respondents did not provide Petitioner sixty (60) days’ written notice that she was being denied certification of the completion of her probationary service as an attendance teacher with Respondent Board. Ver. Pet. at ¶ 14. Respondents only provided Petitioner with approximately (5) calendar days’ notice that they had denied her completion of probation. Ver. Pet. at ¶ 15. On April 3, 2024, Petitioner timely filed a Notice of Claim with Respondents by serving a copy via electronic service upon the Office of 2 5 of 8 FILED: NEW YORK COUNTY CLERK 05/08/2024 02:16 PM INDEX NO. 154265/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/08/2024 Corporation Counsel of the City of New York, which is authorized to receive service on behalf of Respondents. Ver. Pet. at ¶ 16; See also Exhibit B attached to the Verified Petition. Upon information and belief, at the time of filing, it will have been approximately thirty (30) days since Petitioner filed a Notice of Claim with Respondents, and Respondents have neglected or refused to make an adjustment or payment on said claim. Ver. Pet. at ¶ 17. ARGUMENT A. RESPONDENTS VIOLATED THE EDUCATION LAW DUE TO THE FAILURE TO PROVIDE THE SIXTY DAYS’ NOTICE PRIOR TO PETITIONER’S TERMINATION Education Law § 2573(1)(a) provides that, “[e]ach 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 (60) days immediately preceding the expiration of his probationary period.” See Matter of Maria P. Tucker v. Bd. of Educ., Community School Dist. No. 10, 82 N.Y.2d 274, 277 (1993) (stating that a notice requirement is “founded on reasons of practicality and fairness to probationary teachers” and enables teachers “to seek other employment”). In Tucker, the Court of Appeals determined that § 2573(1)(a), “… requires sixty (60) days’ notice whenever a probationary teacher is being denied tenure irrespective of the reasons for the tenure denial or when those reasons arise.” Id. at 281. The petitioner received a discontinuance letter on June 6, 1990, eight days before her probationary period was to end. Id. The Court reasoned, based on the plain language of § 2573, that petitioner was entitled to pay corresponding to the number of days for which she was not provided with the statutorily required sixty (60) days’ notice. Id. 3 6 of 8 FILED: NEW YORK COUNTY CLERK 05/08/2024 02:16 PM INDEX NO. 154265/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/08/2024 B. PETITIONER IS ENTITLED TO ONE DAY’S PAY FOR EACH DAY RESPONDENTS’ NOTICE WAS LATE Courts have consistently held that the appropriate remedy for a teacher who is not notified within the statutorily mandated period is an award of one (1) day’s pay for each day the notice was late. Matter of Zunic v. Nyquist, 48 A.D. 2d 378, 380 (3d Dep’t 1975); Matter of Pascal v. Bd. of Educ., 100 A.D. 2d 622, 624 (2d Dep’t 1984), Matter of Lehman v. Bd. of Educ., 82 A.D. 2d 832, 834 (2d Dep’t 1981); Matter of Tucker, 82 N.Y.2d 274, 278 (1993). In the instant case, Petitioner was not provided with notice of her discontinuance effective March 5, 2024, until February 29, 2024, evidenced by the February 29, 2024 E-mail. Ver. Pet. at ¶ 11-14; Ver. Pet., Exhibit A. Upon information and belief, Petitioner would have completed her probationary period on March 5, 2024. Ver. Pet. at ¶ 10. Since Petitioner was not provided with sixty (60) days’ written notice prior to the termination of her probationary services, Petitioner is entitled to all salary, benefits, and other emoluments of employment, together with interest thereon, that Petitioner would have received had Respondents not unlawfully terminated and removed her from payroll without the proper notice. Pursuant to Education Law § 3813, a party may bring an action against Respondents if Respondent Board of Education has refused to make a payment for thirty (30) days after presentment of a verified written claim. In pertinent part, Education Law § 3813 (1) provides that such an action can proceed if “the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment.” On April 3, 2024, Petitioner served Respondents with the Verified Notice of Claim, which is attached to the Verified Petition as Exhibit B. Respondents have neglected to issue to Petitioner the required pay and all other benefits and emoluments of employment. 4 7 of 8 FILED: NEW YORK COUNTY CLERK 05/08/2024 02:16 PM INDEX NO. 154265/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/08/2024 Accordingly, Respondents’ failure to provide Petitioner with sixty (60) days’ written notice of discontinuance requires Respondents to pay Petitioner her salary, along with all other benefits and emoluments of employment that he otherwise would have received. CONCLUSION Based upon the foregoing, this Court should grant judgment declaring that Respondents failed to provide Petitioner with the proper statutory notice of discontinuance and order Respondents to pay Petitioner all salary, benefits, and other emoluments of employment, together with interest thereon, that petitioner would have received had Respondents not unlawfully terminated her on or about March 5, 2024, with only giving her notice days immediately preceding the expiration of her probationary period, and for such other, further and different relief as this Court may deem just and proper. Dated: May 3, 2024 New York, New York Respectfully submitted, ROBERT T. REILLY Attorney for Petitioner 120 Broadway, Suite 1360 New York, NY 10271 (518) 868-1248 deena.mikhail@nysut.org By: Deena S. Mikhail DEENA S. MIKHAIL Of Counsel 5 8 of 8