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Decision No. 15,000

Appeal of MARK SMOLEN from action of the Board of Education of the City School District of the City of New York relating to termination of employment.



(December 12, 2003)


Michael A. Cardozo, Corporation Counsel, attorney for respondent, Neil S. Rosolinsky, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the termination of his employment as a high school mathematics teacher by the Board of Education of the City School District of the City of New York ("respondent").  The appeal must be dismissed.

On September 2, 1997, petitioner was assigned to respondent"s John Dewey High School as a regular substitute teacher.  At that time, his name appeared on a list of prospective appointees to a probationary position.  Shortly thereafter, respondent reached petitioner"s name on the list, and appointed him as a probationary high school mathematics teacher, effective September 22, 1997.

On September 5, 2000, petitioner received a notice directing him to appear on September 8 at a superintendent"s conference regarding alleged  inappropriate e-mail messages and comments to a student.  In a September 13, 2000 letter to petitioner, the deputy superintendent of Brooklyn High Schools memorialized the September 8 conference and informed petitioner that, based on his inappropriate conduct, petitioner"s services as a mathematics teacher in the Brooklyn High Schools were discontinued, effective September 8, 2000.  The letter further advised petitioner that his services in respondent"s district were terminated, effective October 20, 2000.

On or about January 5, 2001, petitioner commenced an action in New York State Supreme Court, Kings County, challenging the termination of his employment without a hearing.  In that action, petitioner alleged that he had obtained tenure by estoppel on September 2, 2000 and, thus, could not be dismissed from employment without a hearing pursuant to Education Law "2573(5).  Petitioner claimed that he was not provided a hearing prior to his dismissal on September 8, 2000, and that, therefore, respondent violated his due process rights.  Petitioner sought reinstatement to his position.  In the alternative, petitioner claimed respondent owed him certain back pay based on respondent"s failure to provide 60 days" notice of termination, to which a probationary teacher is entitled under Education Law "2573(1)(a).

By decision dated November 26, 2001, the court dismissed petitioner"s claims, holding that he had not acquired tenure by estoppel and, thus, was not entitled to a pre-termination hearing pursuant to Education Law "2573(5).  The court further held that his termination was not arbitrary, capricious, an abuse of discretion or contrary to law.  The court granted petitioner certain back pay based on its finding that respondent failed to provide petitioner appropriate notice required by Education Law "2573(1)(a) prior to his   dismissal (Smolen v. Bd. of Ed., City School District of the City of New York and Levy, No. 01-623, N.Y. Sup. Ct., Kings Co., [Bernstein, J.], dated November 26, 2001).  By decision and order dated April 28, 2003, the Supreme Court, Appellate Division, Second Department affirmed (Smolen v. Bd. of Ed., City School District of New York, 304 AD2d 834).

Petitioner commenced this appeal on May 21, 2003.  He again asserts that he had acquired tenure in respondent"s district as of September 2, 2000 and was entitled pursuant to Education Law "2573(5) to a hearing prior to dismissal.  In the alternative, petitioner contends that he was entitled to such a hearing under the terms of the collective bargaining agreement in effect at the time of his dismissal.  Respondent contends that the appeal must be dismissed as untimely.  Respondent further contends that the doctrine of election of remedies and resjudicata also warrant dismissal.

Petitioner"s memorandum of law contains several new exhibits that were not part of his original pleadings.  A memorandum of law may not be used to belatedly add exhibits that are not part of the record (Appeal of George, 40 Ed Dept Rep 509, Decision No. 14,540; Appeal of Adriatico, 39 id. 248, Decision No. 14,228).  Accordingly, I have not considered the new exhibits appended to petitioner"s memorandum of law.

My review of the pleadings filed with the Supreme Court reveals that that judicial proceeding involved the same set of facts, raised the same issues and sought identical relief as in this appeal.  It is well-settled that the prior commencement of an action or proceeding in another forum for the same relief constitutes an election of remedies which precludes an appeal to the Commissioner of Education (Appeal of T.M., 42 Ed Dept Rep ___, Decision No. 14,855; Appeal of Phillips, 38 id. 165, Decision No. 14,008; Appeal of Jacobson, 37 id. 75, Decision No. 13,808).

The doctrine of resjudicata also compels dismissal of this appeal because where, as here, a court of competent jurisdiction has already denied claims identical to those raised before the Commissioner, an appeal pursuant to Education Law "310 does not lie (Appeal of Phillips, supra).  Moreover, the doctrine of resjudicata applies not only to those claims actually litigated, but also to those claims that could also have been raised in the earlier litigation (O"Brien v. City of Syracuse, 54 NY2d 353; Smith v. Russell Sage College, 54 NY2d 185; Thomas v. City of New York, et al, 239 AD2d 180).  Petitioner"s contractual claim to a hearing prior to dismissal arises out of the same facts alleged in the court proceedings.  Indeed, here petitioner challenges the same action by respondent and seeks identical relief, albeit upon a different legal theory.  Because petitioner could have raised his contractual assertions in his prior judicial proceeding, he is precluded by the doctrine of resjudicata from doing so in this appeal.

The appeal is also untimely.  An appeal to the Commissioner pursuant to Education Law "310 must be instituted within 30 days of the action or decision complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16).  Petitioner challenges respondent"s decision to terminate his employment more than two and one-half years ago.  While 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 with the Commissioner when the appeal is commenced within a reasonable time after dismissal or abandonment of the court proceeding (Appeal of Broderick, 41 Ed Dept Rep 171, Decision No. 14,652; Appeal of R.W., 40 id. 671, Decision No. 14,580), such is not the case here.  In this instance, the court dismissed petitioner"s tenure and statutory due process claims on the merits, and petitioner never raised his contractual claims in that proceeding.  Petitioner"s delay, therefore, may not be excused and the appeal is untimely.

I have considered petitioner"s remaining claims and find them without merit.