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Decision No. 16,507

Appeal of MICHAEL CANESTRARO from action of the Board of Education of the William Floyd Union Free School District, Janet Gilmor, Assistant Superintendent for Human Resources and Administration, Michelina Cerbone, Dawn Conefry, Donna O’Brien, John Digman, Adam Mazzaferro, Diana Brown, Michelle Siefert, Christopher Cochrane, Christie Collura, Barbara Sapanaro, Gary Helbock, Kim Hyland, Barbara D’Orio,Jennifer Roller and Laura Fornaro, regarding abolition of his position and preferred eligibility rights.

Decision No. 16,507

(July 25, 2013)

The Law Office of Borrelli & Associates, P.L.L.C., attorneys for petitioner, Michael J. Borelli, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondents William Floyd School District and Janet Gilmor, Howard

M. Miller, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges various actions of the Board of Education of the William Floyd Union Free School District (“respondent board” or “board”) and Janet Gilmor, as Assistant Superintendent for Human Resources and Administration (“assistant superintendent”) (collectively “respondents”), relating to the abolishment of his position and refusal to appoint him to another position. The appeal must be dismissed.

Petitioner is certified in Performing Arts and Drama. Respondent hired petitioner as a teacher of Theater and Dance, appointed him to a probationary position in the music tenure area and granted him tenure in 2006. Due to budgetary constraints, at its June 3, 2009 board meeting, the board voted to abolish a position in the music tenure area. By letter dated August 20, 2010, the assistant superintendent notified petitioner that his position was abolished, effective August 31, 2010, and that he would be placed on a preferred eligibility list. On October 22,2010, petitioner filed a Notice of Claim for reinstatement and damages and, thereafter, initiated a proceeding against

the district in Supreme Court, Suffolk County, pursuant to Article 78 of the New York Civil Practice Law and Rules (“CPLR”). The court dismissed the petition on the grounds that the Commissioner of Education had primary jurisdiction over the dispute (Canestraro v. William Floyd Union Free School District, Supreme Court, Suffolk County, Index No.0045692/2010). This appeal ensued.

Petitioner asserts that he was improperly terminated because he was not the least senior person in the music tenure area. He alleges that respondents’ actions were illegal, improper, arbitrary, capricious, and unreasonable. He further claims that respondents violated his constitutional and statutory rights in that he was deprived of his property without due process of law in violation of the U.S. Constitution, the Constitution of the State of New York, Education Law “and relevant New York statutes.” He also alleges that respondent hired a non-tenured teacher, uncertified in Performing Arts and Drama, instead of petitioner, in violation of Education Law §3013(3).Petitioner seeks reinstatement to a teaching position within the Fine Arts Department in the music tenure area, with tenure, retroactive to September 1, 2010. In the alternative, he seeks employment as Director of the Children’s Theatre Production, Director/Choreographer of the district’s musical/theater productions, or as a Special Education Fine Arts teacher. He also requests back-pay and benefits, as well as costs and disbursements related to this proceeding.

Respondents allege that the appeal is untimely, that petitioner lacks certification for the positions to which he claims recall rights and that the petition fails to state a cause of action.

I will first address several procedural issues. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell,48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson,48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

I have also not considered portions of the parties ‘memoranda of law. A memorandum of law should consist of arguments of law (8 NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202,Decision No. 15,668). Therefore, the new allegations and exhibits submitted for the first time in the parties’ memoranda have not been considered.

An appeal to the Commissioner must be commenced within30 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914;Appeal of Williams, 48 id. 343, Decision No. 15,879).

Here, petitioner first sought review of respondent board’s decision by timely commencing a proceeding under Article 78 of the CPLR in Supreme Court, Suffolk County on December 17, 2010. Upon dismissal of that proceeding on June 15, 2011 for lack of jurisdiction, petitioner commenced an appeal pursuant to Education Law §310 on July21, 2011 (Appeal No. 19421). Petitioner subsequently withdrew that appeal. Thereafter, on August 26, 2011petitioner commenced this appeal. 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 Jesen of, 48 id. 150, Decision No. 15,822; Appeal of Markow-Brown, 45 id. 315, Decision No. 15,333).

Petitioner asserts that, although the court dismissed his Article 78 proceeding on June 15, 2011, the 30-daytimeframe should not run until July 25, 2011 when he was served with the court’s Order with Notice of Entry. However, the record reveals that petitioner initially filed a petition with my Office of Counsel on July 21, 2011,before the Order with Notice of Entry was served, which he subsequently withdrew. Therefore, petitioner was on notice of the court’s determination prior to July 25. In any event, the affidavit of service filed with my Office of Counsel in the instant appeal indicates that the petition was served on August 26, 2011, more than 30 days from the date the Order with Notice of Entry was served on petitioner. Therefore, in light of the fact that petitioner filed a prior timely appeal, which he later withdrew, and that he has proferred no further excuse for his delay in commencing his subsequent appeal on August 26,2011, I must dismiss the appeal as untimely.

I must also reject petitioner’s contention that the district’s employment of Ms. Roller, an allegedly uncertified teacher, constitutes a continuing wrong. The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen,48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team(Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No.14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al.,45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506,Decision No. 12,901). The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48id. 348, Decision No. 15,882). Based on the record before me, petitioner’s claim that Roller was not properly certified to be the Director of the Children’s Theatre is unsupported. To the contrary, the affidavit of the assistant superintendent for human resources and administration indicates that the district abolished its theater program and that the Children’s Theatre at the high school is an extracurricular activity, outside of the school day. Consequently, because Children’s Theater is not part of the district’s academic curriculum, but is an extracurricular activity, Ms. Roller was not required to be certified to hold this position. Therefore, petitioner has failed to demonstrate that certification was required forthis extracurricular activity, the continuing wrong doctrine does not apply and this claim must also be dismissed.

In light of the foregoing, I need not address petitioner’s remaining contentions.