Teacher Tenure | Nanny’s Protest | Oral Rent Demand

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Teacher Who Returned to Teaching Did Not Preserve His Tenure

Teacher Who Returned to Teaching Did Not Preserve His Tenure

In Springer v. Board of Education of City School District of City of New York, the highest Court in the State, in interpreting the New York City Chancellor’s regulations, ruled that a tenured teacher who resigned and later sought to return, failed to strictly comply with the Chancellor’s regulations to retain his tenure rights.

Following his termination, the teacher, who had previously resigned from his tenured position and then was reappointed, brought an Article 78 proceeding seeking reinstatement to his teaching position and related relief. The New York City Board of Education cross-moved to dismiss the petition. The Supreme Court dismissed petition and on the teacher’s appeal, the Appellate Division affirmed. The teacher was then granted leave to appeal to our State’s highest Court.

The Court of Appeals framed the question before it as follows: “[W]hether a tenured school teacher who resigns from teaching, and then subsequently applies and is hired to teach at another school, is automatically entitled to tenure in the new position. Specifically at issue in this determination is paragraph (29) of New York City Board of Education Chancellor’s Regulation C–205. The regulation provides that a tenured teacher who resigns ‘remain[s] tenured,’ but requires the teacher to first submit a written request to withdraw his or her resignation, subject to a medical examination and the approval of the Chancellor.”

The teacher was employed in the catering license area at M288—Food and Finance High School, located in Community School District No. 2 in Manhattan, beginning in September 2001. In January 2011, after achieving tenure, he voluntarily resigned to pursue a career as a corporate chef. For almost a decade before, he had never been the subject of formal disciplinary charges nor had he ever received an annual rating of “unsatisfactory” prior to his resignation. Several months later, he decided to return to teaching, and after a stint as a substitute teacher, he applied for full-time teaching positions in the summer of 2011.

In October 2011, he was hired as a teacher in the catering license area at M415—Wadleigh Secondary School for the Performing and Visual Arts, located in Community School District No.3 in Manhattan. He was hired under his prior license and file number and at the same salary he received at the time of his resignation. The principal of Wadleigh who hired the petitioner, knew that he had resigned with tenure in January 2011.

However, during the 2011–2012 school year, a new principal took over, and told the teacher that he did not have tenure. At that time, six months after his reinstatement, upon the advice of his union representative, he submitted a form to withdraw his resignation. The Board of Education said it was too late. In May 2012, the teacher received his first rating of “unsatisfactory” for the 2011–2012 school year. As a result, he was terminated. He was not served with disciplinary charges in accordance with the procedures for removing a tenured teacher set forth in Education Law § 3020–a.

Pursuant to Education Law § 2590–h, the Chancellor has the authority to promulgate regulations “necessary or convenient” to the administration of the public school system. Paragraph (29) of Chancellor’s Regulation C–205, entitled “Withdrawal of Resignation Within Five Years by Tenured Staff,” describes the procedure for the withdrawal of resignation by tenured teachers to permit them to return to teaching with tenure.

C–205 (29) provides, in relevant part:

“[A] non-supervisory pedagogical employee who had attained permanent tenure prior to the date of resignation shall … remain tenured and, upon written request, be permitted to withdraw such resignation subject only to medical examination and the approval of the Chancellor, provided that reinstatement is made on or before the opening of school in September next following five years after the effective date of resignation. If reinstatement is made after this date, a two year probationary period will be required.”

Thus, a tenured teacher who has resigned may avoid a probationary term in a new position by submitting a “written request” to withdraw the prior resignation. That request will be “subject only to medical examination and the approval of the Chancellor,” so long as reinstatement is made in accordance with the timing requirements set forth in the regulation.

The teacher argued that he complied with the requirements of the regulation when he applied in writing for various teaching positions. He maintains that when the Board rehired him in October 2011, within five years of his prior resignation, it “effectively accepted the withdrawal of his resignation.” He then claimed that he was a tenured teacher at the time of his termination in June 2012 and that the Board violated his due process rights by failing to provide him with the procedural protections required by Education Law § 3020–a.

The Court applied the “tenets of statutory construction” which “apply equally to administrative rules and regulations.” As such, it construed the regulation “in accordance with its plain language.” By “its plain terms, C–205 (29) requires submission of a written request for withdrawal of resignation prior to a teacher’s reinstatement with tenure. It is an accepted rule that all parts of a statute are intended to be given effect and that a statutory construction which renders one part meaningless should be avoided. If, as petitioner argues, post-resignation application and hiring alone were sufficient to withdraw a prior resignation, then the language of the regulation requiring ‘written request … subject only to medical examination and the approval of the Chancellor,’ would have no meaning. C–205 (29)’s provision that a written request be subject to the Chancellor’s approval gives the Chancellor the opportunity to reject a request to withdraw a resignation. Under petitioner’s theory, the Chancellor’s role in the process is entirely eliminated. Petitioner’s interpretation of the regulation is not in keeping with its plain language.”

The Court concluded that “because petitioner did not withdraw his resignation through the mechanism of a written request, the requirements of C–205 (29) were not met and petitioner was not reinstated with tenure.”

Former Nanny’s Parade-like Protest Outside Socialite’s Home Was Not Outrageous Conduct

Former Nanny’s Parade-like Protest Outside Socialite’s Home Was Not Outrageous Conduct

In De Sesto v. Slaine, a federal Court recently dismissed counterclaims of intentional and negligent infliction of emotional distress alleged by a Manhattan socialite, as a result of a domestic worker’s protest with a bullhorn and marching band, outside the socialite’s New York City apartment building.

A domestic nanny and housekeeper, De Sesto, filed the federal suit against her former employer, Slaine, alleging unpaid overtime wages under the federal Fair Labor Standards Act and New York Labor Law, unpaid wages and failure to provide paystubs under NYLL, and breach of contract. The former employer counterclaimed for among other things, intentional and negligent infliction of emotional distress. De Sesto moved to dismiss the counterclaims and to strike the affirmative defenses.

According to the Complaint, De Sesto regularly worked between thirteen to sixteen-and-a-half hours per day, four to five days per week in her capacity as Slaine’s housekeeper and nanny. For this work De Sesto received $170 per day, which was increased to $200 and she never received overtime pay or paystubs. She claims that prior to 2010, Slaine would typically wait two weeks before paying her wages. De Sesto also alleges that Slaine refused to pay her for any of her hours worked in May 2014.

In Slaine’s answer she claimed that De Sesto consistently inflated her expenses and the hours that she was working when she reported her schedule, in order to fraudulently extract excess payments. Slaine’s account in her answer continued beyond De Sesto’s employment. She alleged that De Sesto organized a protest outside Slaine’s Manhattan residence. Flyers distributed at the protest included a large photograph of Slaine with the large-print legend “Elyse Slaine: WAGE THIEF!” Other flyers stated:

We are marching today in support of Filipina domestic work [sic] Marichu De Sesto, whose wages have been stolen from her by millionaire socialite Elyse Slaine… Marichu is leading today’s march to the home of her former Park Avenue employers. There we will deliver a demand letter for her unpaid and overtime wages. Marichu will speak out about her years of long hours, unpaid overtime and abrupt termination after requesting time off for medical reasons.

Slaine alleged that these flyers contained false statements, and that De Sesto knew they were false. She further alleged that the protests were led by Leah Obias of the organization Damayan. During the protests, Obias threatened that protesters would “be back here every day until she pays. We’re gonna continue a long term campaign, a publicity campaign, until Elyse Slaine, wage thief pays Marichu her wages.” Obias shouted Slaine’s name into a bullhorn and called on her to come down and face the “angry mob,” while a rented marching band played loud music. Demonstrations consisting of chants and distribution of flyers continued on a daily basis for an unspecified period of time. And posts were made on social media encouraging protestors to appear in front of Slaine’s residence until she would agree to pay De Sesto. Slaine alleged that the purpose of these protests was to coerce her to pay De Sesto money to which De Sesto knows she is not entitled.

She alleged that one individual involved in the protest was Ben Becker, who sent a letter to Slaine’s home on behalf of an organization called “Justice First,” and who handed out flyers on the doorstep of Slaine’s building. Becker, Slaine alleged, is the regional organizer for an anti-Zionist organization named A.N.S.W.E.R., and was an organizer and speaker at an anti-Zionist rally in Times Square last year where swastikas were displayed, and Israel compared to Nazi Germany. Slaine also claimed that members of an anti-Semitic, anti-Zionist group called Al-Awda participated in the rally, including one Lamis Deek. Deek is a board member and co-founder of an affiliate of the Council on American-Islamic Relations called CAIR-NY. Slaine claimed that De Sesto, knowing that Slaine is Jewish and the daughter of a holocaust survivor, enlisted these individuals and groups for the purpose of causing Slaine distress. As a result of the protests, Slaine stated that she has suffered extreme emotional distress, manifested as insomnia, loss of enjoyment of life, severe weight loss, extreme public embarrassment, pain, suffering, and mental anguish.

In deciding De Sesto’s motion the Court reasoned that to state a claim for intentional infliction of emotional distress, “a party must allege ‘(1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress.’ Conduct satisfying the first element of the tort must be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.’ ‘Whether the conduct alleged may reasonably be regarded as so extreme and outrageous as to permit recovery is a matter for the court to determine in the first instance.’ When pleading intentional infliction of emotional distress, ‘the bar is extremely high, and this highly disfavored cause of action is almost never successful.’ Indeed, such claims are ‘routinely dismissed on pre-answer motion.’”

As such, the Court held that Slaine’s allegations regarding the protests were “limited.” “A protest was held outside her residence on October 29, 2014, and further protests occurred on unspecified additional days. At the protest, flyers were handed out, banners were waved, a marching band played, and a woman using a megaphone yelled Slaine’s name and demanded that she come out and face the protestors. Slaine received a letter with unspecified contents from the organization Justice First. She describes the letter as “threatening,” but this is a conclusory statement unsupported by any factual allegation. The purpose of these protests was to induce Slaine to pay the wages to which De Sesto claims she is entitled. Slaine also alleges that one individual involved with an anti-Zionist organization and some members of an anti-Zionist, anti-Semitic organization participated in the protests. However, Slaine does not suggest that any of these people were present in their capacity as members of such organizations, that they committed any anti-Zionist or anti-Semitic acts during the protests, or that the protests had any anti-Zionist or anti-Semitic character. Nor does Slaine allege that she had any idea at the time who these people were or what organizations they participated in outside of the protest. Understood in this context, what Slaine alleges is a labor protest of a sort that is not ‘utterly intolerable in a civilized society.’ While Slaine understandably found the protest irritating and disruptive, even troubling or frightening, ‘conduct that causes inconvenience and embarrassment or places a person in an uncomfortable situation for a protracted time is not sufficient’ to state a claim for intentional infliction of emotional distress.”

As for the counterclaim for negligent infliction of emotional distress, the Court noted that a “party can recover for emotional injury resulting from a breach of a duty of care under New York law even if no physical injury occurs. However, ‘the mental injury must be ‘a direct, rather than a consequential, result of the breach,’and the claim must possess ‘some guarantee of genuineness.’ The ‘guarantee of genuineness’ element can be satisfied either by showing a particular kind of negligence recognized by the courts (e.g., mishandling of a corpse; transmitting false information that a loved one has died), or by showing that a breach of duty owed to the injured party endangered that party’s physical safety or caused them to fear for their physical safety. The purpose of the direct link and ‘guarantee of genuineness’ requirements is ‘to filter out petty and trivial complaints and to ensure that the alleged emotional distress is real.’”

The Court held that “Slaine has failed to allege any threat to or fear for her personal safety. Nor has she pointed to any type of negligent behavior recognized by New York courts as creating compensable emotional distress. Accordingly, she has failed to adequately plead the ‘guarantee of genuineness’ element required to show negligent infliction of emotional distress.”

Pleading An Oral Demand For Rent Is Sufficient

Pleading An Oral Demand For Rent Is Sufficient

In Merida v. Morosoff, a landlord commenced a non-payment summary proceeding seeking to recover possession of the 1st Floor at 49 Water Lane North, Levittown, New York. The tenant owed Petitioner the sum of $9,970.00.

The tenant moved to dismiss the petition on the ground that it failed to allege a proper rent demand (either oral or written) giving the tenant actual notice of the amount of rent owed and the period for which the claim is made.

New York’s Real Property Actions and Proceedings Law § 711, provides that a summary non-payment proceeding may be commenced when the “tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a demand of the rent has been made, or at least three days’ notice in writing requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served upon him as prescribed in section 735.” Section 735 is the law that prescribes how the notice of petition and petition must be served in a landlord-tenant summary proceeding.

Here, the petition states that “Rent has been demanded personally from the Tenant since the same became due.”

In support of the motion to dismiss, the tenant submitted an affidavit stating that he was not served with a 3-day demand for rent and that he had “not been served, personally, with any notice or demand to date.”

The landlord argued that he had the option of formally serving a written 3-day demand for rent or making an oral demand, and that the allegation made in the petition of such oral demand meets the requirements of RPAPL §711(2).

The Court agreed with the landlord, reasoning that an oral demand is sufficient if the demand meets the following criteria:

“Unless expressly precluded by the governing agreement a lessor may opt to orally demand the rent. Such election may prove untenable unless: made by the landlord or the landlord’s authorized agent; directed to the tenant unequivocal language demanding performance by the tenant is utilized; and the tenant is apprised of the particular time period for which the rent is claimed to be in default and the approximate good faith amount alleged to be due. A request for ‘all back rent” may not prove sufficient.”

The Court further recognized that “this issue is particularly significant to Landlord/Tenant proceedings because it is common practice for petitions to merely state that oral demand has been made without any specifics. This Court finds that the allegation that rent has been personally demanded from the Tenant satisfies the requirements of RPAPL §711(2). Any controversy about whether the oral demand meets the criteria expressed in Landlord and Tenant Practice in New York [ ] can be determined at trial.”

Accordingly, the tenant’s motion was denied and the matter was set down set down for an immediate trial.

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