Montanez v. Department of Education , 973 N.Y.S.2d 132 ( 2013 )

Order and judgment (one paper), Supreme Court, New York County (Eileen A. Rakower, J.), entered December 29, 2011, denying the petition to vacate an arbitration award, dated April 9, 2011, which terminated petitioner’s employment as a public school teacher, confirming the award, and dismissing the proceeding brought pursuant to Education Law § 3020-a and CPLR article 75, unanimously affirmed, without costs.

Upon review of the transcript provided on appeal, we conclude that the hearing officer’s finding that petitioner fraudulently-obtained a free New York City public school education for her son during the 2009-2010 school year is supported by adequate evidence in the record (see Lackow v Department of Educ. [or “Board”] of City of N.Y., 51 AD3d 563, 568 [1st Dept 2008]). Petitioner did not urge the hearing officer to apply a heightened standard in finding fraud.

Although petitioner has an unblemished record as a teacher and offered to resolve the dispute by making restitution, the penalty of termination is not shocking in light of her having used a fraudulent affidavit to obtain a free New York City education for her non-resident child (see Cipollaro v New York City Dept. of Educ., 83 AD3d 543 [1st Dept 2011]; compare Matter of Guzman v City of New York, 105 AD3d 460 [1st Dept 2013]). Concur — Tom, J.P., Sweeny, Saxe, Freedman and Clark, JJ. [Prior Case History: 2011 NY Slip Op 33408(U).]