Decision No. 17,601
Appeal of ELIZABETH QUATTRONE, from action of the Erie 2-Chautauqua-Cattaraugus Board of Cooperative Educational Services, Pamela Belling and Robin Nielsen-Brown regarding her preferred eligibility rights.
Decision No. 17,601
(March 19, 2019)
Jason L. Schmidt, Esq., attorney for petitioner
Hodgson Russ, LLP, attorneys for respondents, Joseph S. Brown, Esq. of counsel
ELIA., Commissioner.--Petitioner challenges various actions of the Erie 2-Chautauqua-Cattaraugus Board of Cooperative Educational Services (“respondent” or “respondent BOCES”) relating to her preferred eligibility rights. The appeal must be dismissed.
Petitioner holds a permanent certificate in grades N-6, with an extension in gifted education. She was hired by respondent BOCES in 1984. Respondent BOCES appointed petitioner to the elementary tenure area in 1990. She was assigned to provide a gifted and talented program for component school districts. By letter dated June 17, 2003, petitioner was notified that her position in the elementary tenure area would be abolished, effective July 1, 2003 and that her name would be placed on a preferred eligibility list. Thereafter, petitioner filed an appeal to the Commissioner pursuant to Education Law §310, alleging that the gifted and talented program at respondent BOCES was taken over by the Dunkirk City School District and/or the Chautauqua Lake Central School District, two of respondent’s component school districts and, therefore, she was entitled to employment in one of these districts. By decision dated November 24, 2004, the Commissioner dismissed petitioner’s appeal (Appeal of Quattrone, 44 Ed Dept Rep 186, Decision No. 15,143). Thereafter, petitioner filed an Article 78 proceeding challenging the Commissioner’s decision. By decision dated November 21, 2005, the court issued a decision and order dismissing petitioner’s complaint and affirming the Commissioner’s determination that neither school district had taken over the functions of respondent BOCES’ program within the meaning of Education Law §3014-b so as to give rise to an obligation to hire petitioner following discontinuation of her employment with respondent. Petitioner appealed and, by decision dated February 8, 2007, the Appellate Division, Third Department affirmed the Supreme Court’s decision (Matter of Quattrone v. New York State Educ. Dept., 37 AD3d 939).
In or about October 2007, petitioner notified respondent of her interest in a vacant position in the BOCES universal prekindergarten (“UPK”) program at the Dunkirk Learning Center. The record indicates that on August 16, 2006, respondent posted a notice of two openings for positions of “Family Literacy Educators,” which are positions for which petitioner claims a recall right. Thereafter, respondent offered petitioner a UPK position in exchange for a release of all claims. Respondent’s counsel proposed a settlement agreement and emailed it to petitioner’s attorney on November 13, 2007. Petitioner did not accept the settlement agreement because it included a release of her rights. On December 19, 2007, respondent’s director of human resources sent petitioner a letter notifying her that a vacant position existed within the BOCES for teacher of pre-school and asked her to accept or decline the position by December 27, 2007. Petitioner responded in a letter dated December 24, 2007, in which she asserted that the letter was too ambiguous and was not a final determination that she would be appointed to the pre-school teacher position. She then requested a valid offer of re-employment to enable her to make an informed decision. In an email to petitioner’s attorney dated December 26, 2007, the BOCES attorney stated that if petitioner either signed the settlement agreement or indicated acceptance of the position in response to the recall letter by December 27, she would be appointed to the position. Petitioner did not accept or decline the pre-school teacher position and the position was filled. On June 6, 2008, respondent sent petitioner an unconditional employment offer for a Teacher of Pre-School position and requested that that she indicate her willingness to accept or reject this position by June 12, 2008. Petitioner did not respond to the notification and, on August 6, 2008, the position was filled.
On July 1, 2011, BOCES removed petitioner from the preferred eligibility list, because seven years had passed from the abolition of petitioner’s position. Thereafter, petitioner commenced an Article 78 proceeding, alleging a violation of Education Law §3013, a violation of Education Law §3018 and fraudulent misrepresentation. The court issued a decision and order dated April 4, 2014, which was subsequently replaced in its entirety with a decision dated January 6, 2015. Subsequently, on August 26, 2015, after granting respondent’s motion to reargue, the Supreme Court dismissed the petition in its entirety for lack of primary jurisdiction. On March 24, 2017, the Appellate Division, Fourth Department affirmed the dismissal on jurisdictional grounds, finding that the issue of position similarity under Education Law §3013 was an issue for the Commissioner of Education (Quattrone v. Erie 2 Chautauqua Cattaraugus Bd. of Co-op Educ. Servs., 148 AD3d 1553). This appeal ensued.
Petitioner asserts that respondent BOCES unlawfully filled teaching vacancies by temporary appointment before recalling petitioner as the most senior qualified teacher on the preferred eligible list and requests back pay, benefits and pension credit. Petitioner further asserts that the answer is untimely and that it was not properly verified.
Respondent asserts that it acted in good faith and that petitioner failed to meet her burden of demonstrating a clear right to the relief requested because petitioner has failed to demonstrate that the two positions were similar. Respondent further asserts that the petition fails to state a cause of action, that the petition is untimely and moot, and that petitioner has failed to mitigate her damages. Respondent also asserts that all necessary parties were not properly joined in this proceeding because petitioner failed to serve Pamela Belling or Robin Nielsen-Brown.
First, I must address the procedural issues. Petitioner objects to respondent’s late answer. Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service. The date upon which personal service was made upon a respondent shall be excluded in the computation of the 20-day period (8 NYCRR §275.13). Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service. Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3). Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).
Here, the petition was personally served on April 17, 2017 and respondent’s answer was therefore required to be served by May 8, 2017. However, the records of my Office of Counsel indicate that respondent was granted an extension of its time to answer until June 5, 2017 and that petitioner was notified of this extension by letter dated May 19, 2017. Respondent’s affidavit of service indicates that the answer was subsequently served on June 5, 2017. Accordingly, I find the answer timely and I have considered respondent’s answer and the factual allegations contained therein.
Petitioner also contends that respondent’s answer lacks proper verification under Commissioner's regulation §275.5 because the current BOCES District Superintendent, who was appointed after the events that are the subject of this appeal, verified the answer rather than a member of respondent BOCES board who participated in the appointment process for the UPK positions. Section 275.5 provides in relevant part:
An answer shall be verified by the oath of the respondent submitting such answer .... If the appeal is brought from an action of the trustee or the board of trustees or board of education of a school district, verification of the answer shall be made by any person who is familiar with the facts underlying the appeal.
The regulation requires that an answer be verified by a person familiar with the underlying facts, but it contains no language requiring that such person have direct personal knowledge of all the underlying facts. Here, petitioner is challenging respondent’s alleged violation of her right to be recalled from a preferred eligible list with respect to vacancies in 2007 and 2008. By its nature, this appeal, which has been the subject of multiple judicial proceedings, involves matters set forth in the records of the BOCES, either in personnel records or records of the various litigations. While petitioner is correct that the current BOCES district superintendent was not in office at the time of the vacancies, I find that he could properly verify the answer based on his familiarity with the relevant records of the BOCES (cf. Appeal of Charland, 32 Ed Dept Rep 291, Decision No. 12,833 [school district attorney properly verified answer where the issues and facts involved dealt with provisions in a contract and the application of various provisions of the Education Law]).
Petitioner cites to Appeal of Touré et al. (54 Ed Dept Rep, Decision No. 16,660) for the proposition that the verification is defective because the current district superintendent does not have personal knowledge of the facts relating to this appeal. However, that appeal is distinguishable on its facts. In Appeal of Touré, et al., the central allegations concerned the conduct of two board members at May 20 and 21, 2018 board meetings. The petition was verified by a board member who was not present at either of the two meetings. In Appeal of Touré et. al., the respondent provided no explanation of how that board member was familiar with the facts relating to the conduct of the two board members and there was nothing in the record to indicate that the board member who verified the answer was familiar with the relevant facts. Under such circumstances, the Commissioner held that the answer was not properly verified. Appeal of Touré et. al. did not involve the situation present in the instant appeal, where petitioner’s claims primarily concern records of the school district which the current BOCES district superintendent could review and obtain knowledge of the facts underlying this appeal. Therefore, I find that the answer was properly verified (Appeal of Charland, 32 Ed Dept Rep 291, Decision No. 12,833).
I must also reject respondent’s argument that Pamela Belling and Robin Nielson-Brown were not joined as necessary parties. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934). While Bellings and Nielson-Brown are named in the petition, the record reflects that both of these individuals resigned from respondent BOCES in 2008 and, therefore, would not be adversely affected by a decision in this appeal. Moreover, since petitioner is only seeking back pay, benefits and pension credit and not reinstatement, I find that petitioner has joined all necessary parties.
I must also reject respondent’s argument that the appeal is untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). An unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner, when the appeal is commenced within 30 days of receipt of the determination (Appeal of Ferencik, 49 Ed Dept Rep 142, Decision No. 15,981; Appeal of Devente and Jesenof, 48 id. 150, Decision No. 15,822; Appeal of Markow-Brown, 45 id. 315, Decision No. 15,333).
As discussed in detail above, petitioner commenced multiple lawsuits relating to this issue. The most recent court action concerning the issues raised in this appeal is a decision dated March 24, 2017, wherein the Appellate Division, Fourth Department dismissed petitioner’s appeal for lack of primary jurisdiction. The record reflects that petitioner served the petition in this appeal on April 17, 2017, within 30 days of the Appellate Division’s court decision. Therefore, I find the appeal timely.
Finally, I reject respondent’s contention that the appeal must be dismissed as moot because petitioner retired in 2010. An employee’s recall rights do not survive his or her formal retirement unless it can be demonstrated that the decision to retire was involuntary or made under duress (Matter of Donato v. Mills, 6 AD3d 966; Matter of Morehouse v. Mills, 268 AD2d 767). In this case, respondent alleges in its answer that petitioner retired in 2010 and petitioner does not rebut that allegation in her reply or contend that her retirement was involuntary or made under duress. However, in this appeal, petitioner is not asserting a recall right to a vacancy created after her retirement, but is claiming a right to back pay, benefits and pension credit based on respondent’s alleged failure to recall her to a position in the elementary tenure area prior to her retirement that was the subject of pending litigation at the time of her retirement. Petitioner’s retirement occurred approximately two years prior to commencement of the Article 78 proceeding that culminated in an order determining that the Commissioner has primary jurisdiction over the issue of similarity of positions. Under these circumstances, I decline to dismiss the appeal as moot.
Turning to the merits, petitioner’s recall rights, if any, are to vacancies in a position similar to the position she formerly held (Education Law §§ 2510, 3013; Matter of Brewer v. Board of Educ. of Plainview-Bethpage Cent. School Dist., 51 NY2d 855). In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
In this appeal, petitioner is claiming a recall right to a family literacy educator position in an Even start program to which Robin Nielsen-Brown was appointed for the 2005-2006 school year, two family literacy educator positions in a UPK program to which Pamela Belling and Robin Nielsen-Brown were appointed for the 2006-2007 school year, and teacher of pre-school positions for the 2007-2008 and 2008-2009 school years.
On this record, I find that respondent offered petitioner the position of teacher of pre-school for the 2007-2008 school year and the 2008-2009 school year, thereby complying with the recall requirements of Education Law §3013(3) with respect to those vacancies. The record indicates that, on December 19, 2007, respondent’s director of human resources sent a recall letter to petitioner with an attachment that clearly and unequivocally requested that petitioner accept or decline the position with the understanding that, if she accepted the position, she would be recalled in order of seniority. By letter dated December 24, 2007, petitioner implicitly rejected the offer by objecting that certain language in the letter prevented it from constituting a final offer of the position. Subsequently, the BOCES attorney sent an email to petitioner’s attorney stating unequivocally that if she signed a recall letter by December 27, 2007, “she [would] be appointed.”
Petitioner’s claim that she was justified in failing to accept or deny the teacher of pre-school position has no merit. The language that petitioner found unacceptably ambiguous was:
Please be advised, since you are on the preferred eligibility list, you may have rights to this position. However, we do have to recall in order of seniority.
Similarly, the form petitioner was asked to sign to accept or decline the position stated that “I understand if I accept the position offered, I will be recalled in order of seniority.” Clearly, the letter was making an offer of appointment to the position conditioned only on petitioner having the greatest length of service in the system of the persons on the list, which is a statutory requirement (Education Law §3013). The record indicates that petitioner had the greatest seniority of the teachers on the eligible list. Respondent’s director of human resources attested in an affidavit that the recall letter is a form letter sent to teachers being recalled from a preferred eligibility list. Indeed, the record reveals that an identical letter dated December 19, 2007 was sent to the teacher who was second on the list for the position. Moreover, the email from the BOCES attorney clearly and unambiguously confirmed that petitioner would be appointed if she accepted the position. Under the circumstances, I find that petitioner, by failing to accept the position, rejected respondent’s unconditional offer of appointment and could not claim a right to reinstatement to the teacher of pre-school position for the 2007-2008 school year. Consequently, petitioner cannot assert a right to back pay, benefits and pension benefits based on respondent’s failure to appoint her to that position.
Similarly, on June 6, 2008, respondent’s director of human resources sent an identical recall letter to petitioner, requesting that she accept or decline another teacher of pre-school position. Petitioner did not respond to this letter. As with the December 19, 2007 letter, I find that petitioner, by failing to accept the position, rejected respondent’s unconditional offer of appointment and could not claim a right to reinstatement to the teacher of pre-school position for the 2008-2009 school year or a right to back pay, benefits and pension benefits based on respondent’s failure to appoint her to that position.
However, petitioner is also claiming a right to back pay, benefits and pension credit based on respondent’s failure to appoint her to family literacy educator positions for the 2006-2007 school year. There is nothing in the record to indicate that respondent offered to appoint petitioner to those positions from the preferred eligible list, so petitioner’s right to relief depends on whether the position of family literacy educator is similar to that of petitioner’s former position.
Education Law §3013(3)(a) provides, in pertinent part:
If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he or she has filled. The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position.
Accordingly, an individual whose position is abolished has reinstatement rights, but only if the new position is “similar” to the former position. The test to determine whether the two positions are “similar” is whether more than 50 percent of the duties of the new position are those which were performed by petitioner in her former position (Greenspan v. Dutchess County BOCES, 96 AD2d 1028; Appeal of Elmendorf, 36 Ed Dept Rep 308, Decision No. 13,733; Matter of Evans, 10 id. 156, Decision No. 8,252). Petitioner has the burden of proving that a majority of the duties of the new position are similar to those of her former position (Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Heath, III, 37 id. 544, Decision No. 13,923). Additionally, in comparing the similarity of the two positions, the degree of comparable skill and experience required to carry out the duties and responsibilities for each position must be considered (Appeal of Debowy, 41 Ed Dept Rep 161, Decision No. 14,648; Appeal of Jordan, 37 id. 487, Decision No. 13,910). However, it should be noted that the standard of what is similar is flexible and is not to be applied mechanically (Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648).
While both parties admit that petitioner’s former position and the family literacy educator positions are in the same tenure area, i.e., the elementary tenure area, the fact that the positions are in the same tenure area is not determinative of the similarity of the positions (see e.g. Appeal of Debowy, 41 Ed Dept Rep 161, Decision No. 14,648). I find that on this record, petitioner has failed to meet her burden of proving that the duties of petitioner’s former position as a gifted and talented teacher constitute more than 50 percent of the duties of the family literacy educator positions.
Petitioner alleges in her petition that her position as a teacher of gifted and talented students included the following duties:
- provide academic instruction for elementary students in common branch subjects (math, reading, language, science, social students [sic], arts);
- organize classroom learning environment;
- write daily lesson plans;
- complete progress reports as required;
- monitor student attendance;
- update student information sheets;
- requisition instructional materials and supplies;
- purchase materials at local stores as needed;
- assist districts in identifying and enrolling students;
- complete student assessments;
- conduct routine parent conferences;
- meet with district committees as needed;
- discuss student progress with teachers as scheduled;
- schedule and meet with program committees;
- attend yearly conferences;
- disseminate program information to the public.
Although respondent denies such allegations, they are corroborated by the job description for a gifted and talented teaching position that is attached to the petition. However, petitioner provides no evidence of the percentage of time spent performing the various alleged duties cited in the petition, and instead argues in conclusory fashion that the positions are similar because her former position and the family literacy educator positions both involved instruction at the elementary level and related teaching duties.
On appeal, respondent has provided additional documentation of the duties of petitioner’s former position. Respondent has submitted a copy of petitioner’s resume which describes her gifted and talented teaching position as follows:
Organizational/Management: Ongoing coordination with participating component school districts to schedule, supervise and implement self-contained full day programs for groups of gifted/advanced elementary and middle school students; consultation with home school staff to monitor student progress and increase awareness of gifted education; establishment and chairing of regional tri-county consortium for gifted education; staff development presenter for regional programs; development and submission of “Promising Practice Profile” for the State Education Department’s Sharing Success Program.
Instructional: Year to year design and implementation of differentiated curriculum to meet the special educational needs of the gifted elementary and middle school learner (i.e., independent study, historical simulations, creative development, debating, logic, problem solving, critical thinking, etc.)
Creative: Composition and editing of many program news articles; design and dissemination of program brochure; development of specialized program assessment tools; composition and presentation of numerous local and state reports; creation of program curriculum components for individualized instruction.
Respondent also submitted lesson plans and activities prepared by petitioner for gifted and talented students in grades 4 and 6, which appear to indicate that the objectives of the lesson plans are for students to develop deeper critical thinking skills to develop solutions to complex problems.
The record indicates that prior to the 2006-2007 school year, respondent’s Adult Education Division operated an Even Start family literacy program at the Dunkirk City School District “(Dunkirk”). Pursuant to a memorandum of agreement dated September 22, 2006 between respondent BOCES and the Dunkirk board of education, respondent BOCES agreed to provide a UPK program in the 2006-2007 school year, and to close the Even Start program. However, it appears from the record that respondent BOCES continued to treat the UPK positions as if they were Even Start positions. Thus the vacancies in the 2005-2006 and 2006-2007 school years to which petitioner is claiming a recall right used a family literacy educator job title and had duties related to the Even Start program.
The record contains a statement of job duties of a family literacy educator in an Even Start program. This statement was attached to the job posting for the positions ultimately filled by Pamela Belling and Robin Nielsen-Brown. An examination of this statement reveals that the duties of the position primarily consisted of various forms of assistance to families, including weekly home visits, parent education, assisting families in establishing educational and family-related goals and tracking their progress, and various administrative duties relating to the Even Start program. There is no direct reference in the job description to a duty to provide classroom instruction to students; there is merely a reference to responsibility “for facilitating early childhood classes when necessary”, and “for contact with teachers of children including active participation in informational sessions and case conferences.”
The “Family Literacy Educator Guide” submitted by petitioner is dated July 2006 and shows a somewhat different set of duties that include “[c]urriculum instruction for Pre-school students” and more limited duties to conduct home visits. However, this document post-dates the 2005-2006 school year and petitioner has not proven that 50 percent of the time spent performing the duties of a family literacy educator in the 2005-2006 school year were similar to those of her former position as a teacher of gifted and talented students. A comparison of the duties of the two positions indicates very little overlap. The family literacy educator duties are focused on outreach to parents and administrative duties relating to the Even Start program and not, as petitioner contends, on the provision of elementary instruction in core academic subjects and related teaching duties.
Respondent submits affidavits from Pamela Belling and Robin Nielsen-Brown in which they describe the duties of the family literacy educator and teacher of pre-school positions which are the subject of this appeal. Ms. Belling indicates that, for the 2006-2007 and 2007-2008 school years, she “spent approximately 75% of her time on recruiting, administrative tasks, and other activities related to the parents and families in the program with the remaining 25% of [her] time spent on classroom activities with the students in the UPK classroom.” For the 2006-2007 school year, Nielsen-Brown stated “that [she] spent more than 50% of [her time] helping parents to become full partners in [the] education of their children, which included home visits, assisting parents on adult education needs, and performing various administrative tasks (recruiting, grocery shopping, ordering of materials and supplies, conducting a pre-K literacy assessment, etc.) necessary to run the UPK program.”
The affidavits of Belling and Nielsen-Brown further indicate that, in the 2006-2007 school year, the relevant program was in transition from Even Start to UPK. As a consequence, both of them attest that they spent more than 50 percent of their time on duties other than classroom instruction of students, such as home visits and assisting parents. As previously indicated, the “Family Literacy Educator Guide” submitted by petitioner is dated July 2006 and sets forth a set of duties that are different from those set forth in the job description for the positions of family literacy educator attached to the posting for such positions on August 16, 2006. While there is clearly overlap between the duties of petitioner’s former position as a teacher of elementary gifted and talented students and the duties of a family literacy educator, petitioner has provided no evidence concerning the percentage of time devoted to the various job duties of her former position. Petitioner has also failed to submit any evidence which contradicts the sworn assertions in the Belling and Nielsen-Brown affidavits concerning the percentage of time the affiants spent performing the duties of a family literacy educator in 2006-2007. Those affidavits are consistent with the description of job duties attached to the posting of the family literacy educator positions for the 2006-2007 school year, and such postings were issued after publication of the Family Literacy Educator Guide. Under these circumstances, petitioner has not met her burden of proving that 50 percent or more of the duties of the two family literacy educator positions in the 2006-2007 school year were similar to those of her former position as teacher of gifted and talented education.
In light of the foregoing disposition, I need not address the parties’ remaining contentions and responses thereto.
THE APPEAL IS DISMISSED.
END OF FILE
 In this regard, petitioner names Pamela Belling and Robin Nielsen-Brown in the caption of the appeal. The extent to which Ms. Belling and Ms. Nielsen-Brown are necessary parties is addressed herein.
 On May 20, 2008, petitioner commenced a civil action in the U.S. District Court for the Western District of New York asserting, among other claims age discrimination, illegal retaliation, and violations of her First Amendment and due process rights (Quattrone v. Erie 2 Chautauqua-Cattaraugus, Board of Cooperative Educational Services, Civ. No. 08-CV-0367-JTC). On October 13, 2011, the court issued an opinion granting summary judgment to all defendants, including respondent BOCES herein, but declined to exercise jurisdiction over petitioner’s remaining State law claims under the Education Law (Quattrone v. Erie 2 Chautauqua-Cattaraugus Board of Cooperative Educational Services, 200 U.S. District LEXIS 11820 [WDNY 2011]). Petitioner appealed, and the Second Circuit affirmed (Quattrone v. Erie 2 Chautauqua Cattaraugus Bd. of Coop. Educ. Servs., 503 Fed App’x 12 [2d Cir. Nov. 15, 2012]).