Leo v. New York City Department of Education , 954 N.Y.S.2d 89 ( 2012 )

Judgment, Supreme Court, New York County (Cynthia S. Kern, J.), entered March 26, 2012, denying the petition to annul respondent’s termination of petitioner’s probationary employment, revocation of his Department of Education (DOE) teaching certification, placement of his name on DOE’s ineligible/ inquiry list, and award of an overall unsatisfactory rating for the 2010-2011 school year, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner’s challenges to the revocation of his teaching certification and the placement of his name on the ineligible/inquiry list are not time-barred (see CPLR 217). However, the court correctly sustained those determinations and the determination terminating petitioner from his probationary employment because petitioner failed to establish that his termination was done in bad faith (see Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 [1988]). While petitioner’s allegations of bad faith are not, as respondent contends, conclusory, the record contains evidence of good faith on respondent’s part — for example, Principal Martin’s intention was not to terminate petitioner’s employment but to extend his probation for an additional year — as well as evidence of deficiencies in petitioner’s performance.

Petitioner’s challenge to his year-end U-rating was premature because he did not exhaust his administrative remedies (see Matter of Murnane v Department of Educ. of the City of N.Y., 82 AD3d 576 [1st Dept 2011]; Matter of Hazeltine v City of New York, 89 AD3d 613, 614 [2011]). Concur — Mazzarelli, J.P., Sweeny, Moskowitz, Renwick and Freedman, JJ.