Index No. 07-CV-5797 (SHS) 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

GLENN STORMAN, 

 Plaintiff, 

-againstNEW YORK CITY DEPARTMENT OF EDUCATION, 

 Defendant, 

PLAINTIFF’S MEMORANDUM OF 

LAW IN OPPOSITION TO MOTION 

TO DISMISS 

JOHN C. KLOTZ (JK4172) 

Attorney for the Plaintiff 

350 Fifth Avenue, Suite 4810 

New York, New York 10118 

(212) 630-2600

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TABLE OF CONTENTS 

Statement of the case .......................................................................................................... 1 

1. Introduction ........................................................................................................... 1 

2. Statement of facts .................................................................................................. 1 

a. The Plaintiff........................................................................................................ 1 

b. The incident........................................................................................................ 2 

c. The investigation................................................................................................ 3 

d. The finding of ‘substantiated” corporal punishment.......................................... 4 

e. The Chancellor’s Hearing .................................................................................. 4 

f. Importance of case and confrontation with accuser .............................................. 4 

3. State Proceedings................................................................................................... 5 

POINT ONE........................................................................................................................ 6 

BECAUSE OF PLAINTIFF’S IMPORTANT LIBERTY INTERESTS AT STAKE, 

PLAINTIFF WAS ENTITLED TO THE DUE PROCESS OF LAW WHICH 

INCLUDED A HEARING, CONFRONTATION WITH HIS ACCUSER AND A 

DETERMINATION UPON THE MERITS SUPPORTED BY AT LEAST A 

PREPONDERANCE OF THE EVIDENCE. ..................................................................... 6 

Stigma Plus...................................................................................................................... 6 

POINT TWO....................................................................................................................... 9 

THE WEIGHT OF AUTHORITY IS THAT SECTION 1983 DAMAGES ARE NOT 

RECOVERABLE IN AN ARTICLE 78 PROCEEDING AND MAY BE PURSUED IN 

A COLLATERAL ACTION IN FEDERAL COURT........................................................ 9 

POINT THREE................................................................................................................. 11 

BY WHATEVER STANDARD IS APPLIED, THERE IS NO EVIDENCE THAT 

PLAINTIFF WAS GUILTY OF AN ACT CORPORAL PUNISHMENT,..................... 11 

POINT FOUR ................................................................................................................... 12

IN THE EVENT THAT COURT FINDS THAT COMPLAINT FAILS TO STATE A 

CAUSE OF ACTION, LEAVE OUGHT TO BE GRANTED TO FILE AN AMENDED 

COMPLAINT. .................................................................................................................. 12 

CONCLUSION................................................................................................................. 13 

THE UNSATISFACTORY RATING HAS DAMAGED THE PLAINTIFF 

PERMANENTLY AND WAS THE RESULT OF A PROCEDURE THAT DENIED 

THE PLAINTIFF DUE PROCESS, THE AMENDED COMPLAINT STATES A 

CAUSE OF ACTION. IN THE ALTERNATIVE, THE COURT OUGHT GRANT 

LEAVE TO FILE AN AMENDED COMPLAINT.......................................................... 13 

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------------------------------------X 

 : 

GLENN STORMAN : 

 : 

 Plaintiff, : 

 : 

 -against- : 

 : 

NEW YORK CITY DEPARTMENT OF EDUCATION, : 

 : 

 : 

 Defendants. : 

 : 

-----------------------------------------------------------------------X 

Index No. 07 CV 5797 (SHS) 

PLAINTIFF’S OPPOSING MEMORANDUM OF LAW

Statement of the case 

1. Introduction

This is an action pursuant to 42 USC § 1983 seeking damages from the New York City 

Department of Education. The defendant has not answered but moved to dismiss the complaint. 

Subsequently, plaintiff filed an amended complaint (“AC”) as of right. All references herein will 

be to the AC. The principal difference between the complaint and the AC is that all requests for 

injunctive action have been dropped form the AC and this action is purely one for damages. 

After filing the AC, the attorney for the plaintiff discussed this matter with assistant 

corporation counsel and pointed that technically it mooted the motion to dismiss. However, the 

corporation counsel expressed a desire to continue with the motion and respond to the such 

opposing papers as the plaintiff should serve and file. 

2. Statement of facts

a. The Plaintiff

Plaintiff, Glen Storman, is a tenured Guidance Counselor employed by the New York City 

Department of Education (“DOE”). This is an action pursuant to 42 U.S.C. § 1983 seeking 

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damages on account of a denial to plaintiff of his liberty interests without due process of law by 

reason of a determination after a hearing by the Chancellor of the DOE, affirming the 

unsatisfactory (“U”) rating given to Plaintiff as a result of a “substantiated incident of corporal 

punishment.” 

Plaintiff maintains that the determination that he committed an act of “corporal punishment” 

was not in fact substantiated and that all the evidence indicates that there was either (a) no 

physical contact with the pupil involved (Student A), or (b) any contact, if it did occur, was 

unintentional and so slight that it was unseen by ALL the witnesses to the incident who were in 

the same room observing what happened. 

b. The incident

The incident at the heart of this case is described in the AC as follows: 

“17. On October 26, 2004, Plaintiff entered a classroom to obtain 

information about a student’s attendance (Student X). In his hand, he had a rolledup piece of paper concerning the attendance of Student X.. 

“!8. As he entered the classroom, Plaintiff became aware of a tumult in the 

classroom. A student (“Student A”) was kneeling on a chair, cursing out a female 

substitute teacher and disrupting the class. He approached the Student A, and 

gesturing with the hand in which he had the piece of paper, told Student A to “Zip 

it.” 

“19. Whereupon Student A, sat down and ceased his disruptive behavior. 

“20. Plaintiff did not touch Student A. In the alternative, if the paper in his 

hand touched Student A, it was entirely accidental and unintentional. No one in 

the room observed Student A touched by the paper and Plaintiff does not believe 

it happened. Such accidental touching, if it occurred, was slight and caused 

absolutely no harm or damage or injury of any kind to Student A. 

“21. Plaintiff regarded the incident as closed as he had accomplished his 

objective which was to help the substitute teacher restore order. 

As will appear, infra, nothing in the investigation following the incident and subsequent 

hearing contradicts the AC in any way. The Transcript of the Chancellor’s Hearing is annexed to 

the AC as Exhibit E and will be cited hereinafter as “TR.” 

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c. The investigation

Mr. Storman saw no need to make any report of the incident because it was so quickly 

resolved by his action and the class had returned to normal. Had it been a continuing out of 

control situation he would have reported it, as he had at other times in the past. At the 

Chancellors Hearing, he was queried by Supervising principal, why he hadn’t reported it: 

MS. MARCELLA: Well, if the child was acting out so terribly and cursing the 

teacher and doing all these terrible things, why wasn't it brought to the 

administration? 

MR. STORMAN: Because when I went over to him and I said to him to stop, to 

zip it, he basically stopped because I was attending to it. It ended there, basically. 

MS. MARCELLA: He didn't what, I'm sorry? 

MR. STORMAN: He stopped making any kind of difficult behavior and 

comments to the substitute teacher when I went over to him and to say, zip it. So, 

as the situation was ameliorated -- I come to you often when situations are like 

that [out of control], why wouldn't I [have reported such a situation]?” TR 56 

However, some three weeks later, an investigation of Mr. Storman was begun on the 

complaint of his Supervisor Ms. Josephine Marcella, that Mr. Storman had been charged by the 

student’s father with inappropriate sexual contact by Mr. Storman with Student A. TR 16 

The matter was referred to the Chancellor’s Office of Special Investigations (OSI) and 

Dennis Boyles was assigned the investigation. His report appears as Exhibit D of the AC.. 

In his investigation, Mr. Boyles interviewed 9 student witnesses, including Student A. None 

of the student witnesses, except Student A, saw any touching of Student A by Plaintiff. They did 

confirm Student A’s disruptive behavior. Student A dropped any claim that there was a sexual 

connotation to the incident. He was not in fact physically harmed, but stated he was 

“embarrassed.” All of the students who had any recollection of the incident confirmed that 

Student A was being disrespectful to the teacher and cursing her. Student A admitted that to be 

the case. (The Report of Investigation, AC, Ex. D) 

Student H stated to Mr. Boyles, that Student A had told him that he would “get Mr. 

Storman.” (AC, Exhibit D, p. D-3) 

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d. The finding of “substantiated” corporal punishment

Mr. Boyles reported to Commissioner Hyland and the Commissioner Hyland reported to 

Ms. Marcella that the incident of corporal punishment had been substantiated. Thereafter, Ms. 

Marcella directed Mr. Carl Santamaria to issue a “U” rating to Mr. Storman on the grounds of a 

substantiated incident of corporal punishment.” (TR 15) Mr. Storman, appealed. 

e. The Chancellor’s Hearing

At the Chancellor’s Hearing, Ms. Marcella stated that she based the “U” rating on the 

grounds that Mr. Boyles investigation it was “substantiated for Corporal Punishment.” (TR 12) 

However, she later professed expertise as to what constitutes corporal punishment and that the 

incident to did NOT rise to the level of corporal punishment. (TR 40) 

At the Hearing, Mr. Boyles, admitted that there was no incident of corporal punishment. and 

the finding of substantiated corporal punishment was just ”boilerplate.” (TR 38-39) He found 

inappropriate contact because: 

“Mr. Storman, based on his written statement and the conversation I had with 

him, where he said he might have touched the kid when he was motioning for 

him to be quiet because he had a piece of paper in his hand, based on that, I 

substantiated for inappropriate touching, and I forwarded the report to Ms. 

Marcella.” (Emphasis supplied) TR 17 

Mr. Storman’s statement at the Chancellors hearing appears at pages TR 42 to TR 49 of the 

record. 

Nothing in this record contradicts AC 0r Mr. Storman. Nothing. Mr. Storman never admitted 

to intentionally touching the student and the statement by Mr. Boyles confirms that. All that Mr. 

Storman said is that he “might” have touched the student with the paper. 

f. Importance of case and confrontation with accuser

Mr. Storman’s union advisor at the hearing, Michael Grossman, presented to the 

Chancellor’s representative, an arbitration decision in another matter. (TR 51-52). The point is 

that when important issues for a tenured teacher are at stake, the Report of the OSI is more of an 

indictment and there should be a right to confront adverse witnesses. No such right of 

confrontation was afforded Plaintiff. 

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3. State Proceedings

Mr. Storman commenced an Article 78 Proceeding to set aside the determination of the 

Chancellor that he was guilty of a substantiated incident of misconduct. 

The defendant has supplied the court with a copy of the Plaintiff’s Article 78 petition. 

Annexed hereto as Exhibit A is a copy of the defendant’s memorandum to the state court and the 

Court is respectfully requested to take judicial notice of the same. In it, the defendant argues that 

an “abuse of discretion” standard applies to any review of the determination of the Chancellor at 

issue. It also argues that the damages sought by plainitiff were not incidental to the Article 78 

proceeding. 

The state proceeding is currently sub judice. 

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POINT ONE 

BECAUSE OF PLAINTIFF’S IMPORTANT LIBERTY 

INTERESTS AT STAKE, PLAINTIFF WAS ENTITLED TO 

THE DUE PROCESS OF LAW WHICH INCLUDED A 

HEARING, CONFRONTATION WITH HIS ACCUSER AND 

A DETERMINATION UPON THE MERITS SUPPORTED 

BY AT LEAST A PREPONDERANCE OF THE EVIDENCE. 

There are four standards of evidentiary review of administrative: 

(1) Abuse of discretion where no hearing is required NY CPLR 7803(3) Scherbyn v. 

Wayne-Finger Lakes BOCES, 77 N.Y.2d 753 (1991); 

(2) Where a hearing is required, substantial evidence is necessary tio support the 

challenged determination. NY CPLR 7803(4) Pell v. Board of Education, 34 N.Y.2d 

222 (1974); 

(3) A preponderance of the evidence where an action results in a “Stigma plus” denial of 

a liberty interest (Valmonte v Bane, 18 F. 3d 992, 1000-1001 [2d Cir. 1994]) 

(4) Clear and convincing evidence where the liberty interest threatened is of the highest 

importance (Santosky v. Kramer, 455 U.S. 745, 766, 71 L. Ed. 2d 599, 102 S. Ct. 

1388 [1982] permanent loss of parental rights) 

Stigma Plus

Where a state imposes on an employee a stigma or other disability that forecloses his 

freedom to take advantage of other employment opportunities, then, because deprivation not only 

of present government employment, but also of future opportunity for government employment, 

is no small injury, the state is required by procedural due process to accord to the teacher notice 

and an opportunity to refute the charges before state officials. Valmonte v Bane, 18 F. 3d 992, 

1000-1001 (2d Cir. 1994). The issue in this case is whether the bundle of injuries to Plaintiff 

caused by his “U” rating are such as to constitute a denial to him of his protected liberty interests 

without due process or law which would include requiring findings of fact supported by a 

“preponderance of the evidence.” 

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Plaintiff has set forth in his Complaint the direct benefits he is losing because of his “U” 

rating and the fact is that the “U” rating is precisely the type of stigma that will follow him and 

foreclose employment opportunities for him. In terms of his liberty rights, the AC specifically 

alleges: 

“8. For over 25 years Plaintiff has been employed by the New York City 

Board of Education and for the last 16 years he has been employed as a guidance 

counselor. During this time, Plaintiff has enjoyed an excellent reputation having 

earned the high regard of parents, students, his teaching colleagues and 

supervisors. 

“9. Plaintiff’s tenure rights are vested in him by reason of the provisions of 

the New York Sate Education Law, the contract between Defendant and the his 

union, the United Federation of Teachers (“UFT”) and rules, regulations and 

procedures promulgated by the defendant pursuant to its governmental power. 

“10. Among the rights and privileges afforded Plaintiff by the UFT 

Contract are “retention rights” which allows him to obtain and retain extraassignments including assignment as a summer school teacher and as a Home 

Instructor pursuant to the Defendant’s Home Instruction Program. 

“11. Plaintiff’s vested rights of retention and his ability to pursue 

professional opportunities afforded him by his experience and previously 

unblemished reputation are all integral parts of his liberty that is protected by the 

United States Constitution.” 

Defendant contends that the existence of a “post deprivation” remedy” defeats plaintiffs 

claim to a denial of due process. However, where the denial of due process is in the context of an 

established state process – as it is in this case – then the existence of a post deprivation remedy 

is not relevant and does not defeat a due process claim. Hellenic American Neighborhood Action 

Comm. v. City of New York, 101 F.3d 877, 881 (2d Cir. 1996)(collecting cases), cert. denied, 521 

U.S. 1140, 118 S. Ct. 15, 138 L. Ed. 2d 1048 (1997). 

In Hellenic, The Court of Appeals stated: 

“When reviewing alleged procedural due process violations, the Supreme Court 

has distinguished between (a) claims based on established state procedures and 

(b) claims based on random, unauthorized acts by state employees. See Hudson v. 

Palmer, 468 U.S. 517, 532, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984); Parratt v. 

Taylor, 451 U.S. 527, 541, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled on 

other grounds by Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 

662 (1986). In the latter case, the Due Process Clause of the Fourteenth 

Amendment is not violated when a state employee intentionally deprives an 

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individual of property or liberty, so long as the State provides a meaningful post 

deprivation remedy. Hudson v. Palmer, 468 U.S. at 531, 533. When the 

deprivation occurs in the more structured environment of established state 

procedures, rather than random acts, the availability of post deprivation 

procedures will not, ipso facto, satisfy due process. Id. at 532; Logan v. 

Zimmerman Brush Co., 455 U.S. 422, 435-36, 71 L. Ed. 2d 265, 102 S. Ct. 1148 

(1982).” Hellenic American Neighborhood Action Comm. v. City of New York, 

supra, 101 F.3d at 880 

Where, the claim is based on the “random, unauthorized act” of state employees and there is 

a viable post-deprivation remedy, the proper result is to dismiss the Section 1983 claim, but the 

federal courts are available where the actions were not random, unauthorized acts: 

“[I]f there is a constitutional violation, federal courts are available to hear § 1983

suits despite the availability of adequate state procedures. Monroe v. Pape, 365 

U.S. at 183. Parratt, Hudson and their progeny, however, emphasize that there is 

no constitutional violation (and no available § 1983 action) when there is an 

adequate state post deprivation procedure to remedy a random, arbitrary 

deprivation of property or liberty. Zinermon v. Burch, 494 U.S. at 132; Parratt 

v. Taylor, 451 U.S. at 541; Hudson v. Palmer, 468 U.S. at 531, 533” (Emphasis 

added) Hellenic American Neighborhood Action Comm. v. City of New York, 

supra, 101 F.3d at 882 

In Reyes v. Erickson, 238 F.Supp.2d 632, 636 (S.D.N.Y. 2003) this Court applied the 

reasoning of the Hellenic case to dismiss a Section 1983 claim which the Court found to meet the 

“random and unauthorized” logic of Hellenic. It also noted the discussion of Hellenic in John Gil 

Constr., Inc. v. Riverso, 72 F. Supp.2d 242, 251 n.13 (S.D.N.Y. 1999). 

The issue to be decided then is whether this case is more like Reyes or more like Logan v. 

Zimmerman Brush Co., 455 U.S. 422 (1982). In essence, this distinction among acts pursuant to 

a state sanctioned process and “random, unauthorized acts” is a variant of the state action 

element of a Section 1983 claim. Where, as it in this case, the deprivation is the result of a state 

process, it is state action. However, where, as is not the case here, there it is a random, 

unauthorized act and the state provides a remedy, the random unauthorized act is not state action. 

In its memorandum to the state court (Ex. A, appended), the defendant does not argue that 

the Chancellor’s action was random or unauthorized. To the contrary, it defends his right to 

make a decision governed only by the rule of abuse of a discretion standard.. But neither CPLR § 

7803(3) (abuse of discretion) nor § 7803(4) (substantial evidence) pass constitutional muster 

when a “stigma plus” event occurs. 

Case 1:07-cv-05797-SHS Document 10 Filed 09/28/2007 Page 10 of 22
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Narumanchi v. Board of Trustees, 850 F2d 70, 72 (2nd Cir. 1988).cited on page 5 of the 

defendants memorandum is not applicable to this case because the plaintiff in that case refused to 

exercise his rights pursuant to the collective bargaining agreement or participate in the grievance 

procedure. This pre-Hellenic decision did not analyze the issue before it in the manner of 

Hellenic. 

POINT TWO 

THE WEIGHT OF AUTHORITY IS THAT SECTION 1983 

DAMAGES ARE NOT RECOVERABLE IN AN ARTICLE 78 

PROCEEDING AND MAY BE PURSUED IN A 

COLLATERAL ACTION IN FEDERAL COURT. 

The AC alleges damages as follows: 

“59. By reason of the premises aforesaid, Defendant acting under color of 

law has deprived the Plaintiff of his liberty rights and property without due 

process of law in violation of 42 U.S.C. § 1983. 

“60. By reason of the premises aforesaid, Plaintiff has been damaged in 

his property by reason of lost income and reasonably anticipated retirement 

benefits in the some of $1,000,000. 

“61. Defendant’s actions has caused Plaintiff severe emotional distress and 

anxiety, caused him to lose sleep and suffer pain and anguish because of the threat 

to his continued employment and the destruction of his career and reputation. 

“62. The actions of the defendant damaged Plaintiff’s otherwise 

harmonious relationship with his wife, creating domestic friction, further causing 

and enhancing his emotional distress. 

“63. By reason of his emotional distress and damage to his marital 

relationship, plaintiff has been damaged in sum to be determined but not less than 

$1,000,000. 

“64. By reason of the premises aforesaid the Plaintiff is entitled to 

judgment in the sum of $2,000,000 together with the costs and disbursements of 

this action including reasonable attorney fees pursuant to 42 U.S.C. §1988.” 

Both N.Y. State courts and federal courts, presented with issues arising in federal actions 

brought subsequently to, or concurrently with an Article 78 proceeding involving the same 

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operative facts, have recognized the limited scope of damages recoverable in an Article 78 

proceeding, as contrasted with an action pursuant to Section 1983. 

In Schwab v. Bowen, 41 N.Y.2d 907, 394 N.Y.S.2d 616, 363 N.E.2d 341 (1977), the New 

York State Court of Appeals held that “Damages may not be awarded in this proceeding because 

damages, if any, would not be incidental to primary relief ( CPLR 7806). This determination is 

without prejudice, of course, to any other action petitioners may be advised to take.” In 

Finklestein v. Capuano, 792 F.2d 275, 278-82 (2d Cir. 1986)1 the Second Circuit Court of 

Appelas determined that damages for civil rights violations are not recoverable in Article 78 

proceedings, In Resource N.E. Of Long Island, Inc. v. Town Of Babylon, 28 F. Supp. 2d 786, 792 

(E.D.N.Y. 1998), the District Court held that Article 78 is not adequate remedy for Section 1983 

claims because it does not offer the full range of relief of Section 1983, See also Reape v. 

Adduci, 151 A.D.2d 290, 293, 542 N.Y.S.2d 562, 564 (1st Dep't 1989) where the First 

Department of the N.Y.S. Appellate Division held that civil rights actions for damages are not 

incidental to Article 78 reviews of administrative determinations. 

Moreover, in the state court proceeding, defendant has argued that the damages sought were 

not recoverable in an Article 78 proceeding. (Exhibit A, POINT TWO, pp. 4-5) 

 

1

 For some reason, not apparent to counsel, this case is cited as Davidson v. Capuano in 

Resource N.E. Of Long Island, Inc. v. Town Of Babylon . supra. 

Case 1:07-cv-05797-SHS Document 10 Filed 09/28/2007 Page 12 of 22
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POINT THREE 

BY WHATEVER STANDARD IS APPLIED, THERE IS NO 

EVIDENCE THAT PLAINTIFF WAS GUILTY OF AN ACT 

CORPORAL PUNISHMENT, 

According to Chancellor’s Regulation A-420: 

***“Regulations of the Commissioner §100.2(I)(3)(i) define corporal punishment 

as any act of physical force upon a pupil for the purpose of punishing that pupil. 

Such term shall not mean the use of reasonable physical force for any of the 

following purposes: 

“1. to protect oneself from physical injury; 

“2. to protect another pupil or teacher or any other person from physical injury 

(e.g. breaking up a physical altercation without using excessive force); 

“3. to protect the property of the school or of others; or 

“4. to restrain or remove a pupil whose behavior is interfering with the orderly 

exercise and performance of school district functions, powers or duties, if that 

pupil has refused to comply with a request to refrain from further disruptive acts, 

provided that alternative procedures and methods not involving the use of 

physical force cannot be reasonably employed to achieve the purposes set forth in 

1 through 3 above.” (Emphasis supplied) 

The issue, therefore, is whether, Mr. Storman committed an act of physical force on Student 

A for the purpose of punishing him. It is an offense of intent. There are no facts in this record 

to indicate that Mr. Storman exerted “physical force” upon Student A for the purpose of 

punishment – or any other purpose at all. Plaintiff submits that whatever test is applied, the result 

is the same, the determination must be set aside and the “U” rating based upon a substantiated 

incident of corporal punishment expunged from Plaintiff’s record. 

In the case at bar, both the investigating officer and the supervising principal conceded that 

the facts did not amount to corporal punishment. (TR 38-40). Given those admissions and the 

total absence from this record of any evidence that Mr. Storman inflicted physical force on 

Student A for the purpose of punishing him, the “U” rating is patently in error. 

Yet, the Chancellor, after the hearing in which these admissions were made, sustained the 

rating on the grounds of a “substantiated incident of corporal punishment”. 

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POINT FOUR 

IN THE EVENT THAT COURT FINDS THAT THE 

AMENDED COMPLAINT FAILS TO STATE A CAUSE OF 

ACTION, LEAVE OUGHT TO BE GRANTED TO FILE AN 

AMENDED COMPLAINT. 

In the event that the Court should find for any reason that the AC fails to state a cause of 

action, leave is requested to file a second amended complaint. 

“[A] complaint should not be dismissed for failure to state a claim unless it appears beyond 

doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him 

to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When a complaint is dismissed, leave to 

amend should be freely granted. In Foman v. Davis, 371 U.S. 178; 83 S. Ct. 227; 9 L. Ed. 2d 222 

(1962) the Supreme Court held: 

“Rule 15 (a) declares that leave to amend "shall be freely given when justice so 

requires"; this mandate is to be heeded. See generally, 3 Moore, Federal Practice 

(2d ed. 1948), paras. 15.08, 15.10. If the underlying facts or circumstances relied 

upon by a plaintiff may be a proper subject of relief, he ought to be afforded an 

opportunity to test his claim on the merits. In the absence of any apparent or 

declared reason -- such as undue delay, bad faith or dilatory motive on the part of 

the movant, repeated failure to cure deficiencies by amendments previously 

allowed, undue prejudice to the opposing party by virtue of allowance of the 

amendment, futility of amendment, etc. -- the leave sought should, as the rules 

require, be "freely given." Of course, the grant or denial of an opportunity to 

amend is within the discretion of the District Court, but outright refusal to grant 

the leave without any justifying reason appearing for the denial is not an exercise 

of discretion; it is merely abuse of that discretion and inconsistent with the spirit 

of the Federal Rules.” Foman v. Davis, supra, 371 U.S. at 182 

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CONCLUSION 

THE UNSATISFACTORY RATING HAS DAMAGED THE 

PLAINTIFF PERMANENTLY AND WAS THE RESULT OF 

A PROCEDURE THAT DENIED THE PLAINTIFF DUE 

PROCESS, THE AMENDED COMPLAINT STATES A 

CAUSE OF ACTION. IN THE ALTERNATIVE, THE 

COURT OUGHT GRANT LEAVE TO FILE AN AMENDED 

COMPLAINT. 

Dated: New York, New York 

 September 28, 2007 

 Respectfully submitted, 

______S/JOHN C. KLOTZ________

JOHN C. KLOTZ (JK4162) 

Attorney for Plaintiff 

350 Fifth Avenue, Suite 4810 

New York, New York 10118 

(212) 630-2600 

Case 1:07-cv-05797-SHS Document 10 Filed 09/28/2007 Page 15 of 22
Index No. 18337/06

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

In the Matter of

GLENN STORMAN,

Petitioner,

-againstNEW YORK CITY DEPARTMENT OF EDUCATION,

Respondent.

RESPONDENT'S MEMORANDUM OF LAW IN

SUPPORT OF VERIFIED ANSWER

MICHAEL A. CARDOZO

Corporation Counsel of the City of New York

Attorney for Respondent

100 Church Street, Room 2-170

New York, New York 10007

Of Counsel:

Daniel Chiu

Tel: 212-788-1158

EXHIBIT A: NYC DOE'S STATE COURT MEMORANDUM

Case 1:07-cv-05797-SHS Document 10 Filed 09/28/2007 Page 16 of 22
PRELIMINARY STATEMENT 

Petitioner Glenn Storman ("Storman" or "Petitioner") commenced this proceeding

pursuant to CPLR § 7803(3) alleging that the unsatisfactory rating he received for the 2004/2005

school year should be vacated. Petitioner argues that the unsatisfactory rating should be vacated

because respondent New York City Department of Education ("DOE" or "Respondent") presents

no evidence to substantiate that Petitioner engaged in corporal punishment against a student

("Student A").

Petitioner, however, is mistaken. The Office of Special Investigations conducted an

investigation that substantiated the claim that Petitioner had inappropriately touched Student A's

mouth with a rolled up piece of paper in order to quiet him. Furthermore, Petitioner admitted to

the misconduct to Principal Josephine Marsella and the OSI Investigator Dennis Boyles. Based

on this evidence and Petitioner's failure to deny, without qualification, that he made physical

contact with Student A, the Chancellor's Committee properly recommended denial of

Petitioner's appeal seeking to vacate his unsatisfactory rating. The Chancellor accepted the

recommendation of his review committee and denied Petitioner's appeal.

As a consequence, the determination of the Chancellor was not arbitrary and capricious

and the Verified Petition should therefore be dismissed.

EXHIBIT A: NYC DOE'S STATE COURT MEMORANDUM

Case 1:07-cv-05797-SHS Document 10 Filed 09/28/2007 Page 17 of 22
STATEMENT OF FACTS 

Respondent respectfully refers the Court to Respondent's Verified Answer, dated March

16, 2007, and the exhibits annexed thereto, for the facts relevant to this proceeding.

2

EXHIBIT A: NYC DOE'S STATE COURT MEMORANDUM

Case 1:07-cv-05797-SHS Document 10 Filed 09/28/2007 Page 18 of 22
ARGUMENT

POINT I

THE DENIAL OF PETITIONER'S APPEAL

SEEKING TO VACATE HIS

UNSATISFACTORY RATING WAS

REASONABLE AND NOT ARBITRARY AND

CAPRICIOUS

The standard of review for agency determinations is the arbitrary and capricious standard.

CPLR § 7803(3); see also Scherbyn v. Wayne-Finger Lakes, 77 N.Y.2d 753, 758, 573 N.E.2d

562, 566, 570 N.Y.S.2d 474, 478 (1991) (standard of review for agency determination is

arbitrary and capricious). In addition, it is "well settled that a court may not substitute its

judgment for that of the board or body it reviews unless the decision under review is arbitrary

and unreasonable and constitutes an abuse of discretion." Pell v. Board of Education, 34 N.Y.2d

222, 232, 313 N.E.2d 321, 326, 356 N.Y.S.2d 833, 840 (1974) (emphasis in original) quoting

Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d 508, 520 (1956).

Moreover, there is a very strong presumption that respondent acted appropriately and

petitioner bears the "burden of pleading and proving that respondent acted in bad faith." Leskow

v. Office of Court Administration, 248 A.D.2d 1004, 1004, 670 N.Y.S.2d 148, 148 (4 th Dep't

1998). The purpose of the court is not to "second guess administrative determinations made by

various agencies and departments." Soto v. Koeheler, 567 N.Y.S.2d 652, 654 (1 st Dep't 1991).

Courts are "simply to determine if petitioner has shown bad faith on the part of the respondent."

Id., 567 N.Y.S.2d at 654.

In the instant matter, Petitioner has made no showing that DOE acted in bad faith or that

its determination denying Petitioner's appeal was arbitrary and capricious. Petitioner's appeal

was heard on May 23, 2006 and on August 11, 2006, the Committee recommended denial of

EXHIBIT A: NYC DOE'S STATE COURT MEMORANDUM

Case 1:07-cv-05797-SHS Document 10 Filed 09/28/2007 Page 19 of 22
Petitioner's appeal, finding that, based on the oral testimony and documents presented, including

Petitioner's admitted misconduct, that the unsatisfactory rating was warranted.

The Committee's determination and recommendation was supported by the credible

evidence and was reasonable. Petitioner admitted to his principal, Josephine Marsella, and the

Office of Special Investigations investigator, Dennis Boyles, that he touched Student A's mouth

with a rolled-up piece of paper in order to quiet him. As a result, Petitioner violated DOE's rule

on corporal punishment prohibiting the use of physical force to discipline a student. Principal

Carl SantaMaria was thus warranted in giving Petitioner an unsatisfactory rating.'

Petitioner has presented no credible evidence that the Committee's recommendation and

the Chancellor's determination were made in bad faith or were arbitrary and capricious.

Consequently, the Verified Petition should therefore be dismissed in its entirety.

POINT II

PETITIONER'S CLAIM FOR MONEY

DAMAGES IS NOT INCIDENTAL TO THE

PRIMARY RELIEF SOUGHT

It is fundamental that a "claim for money damages in an article 78 petition must be

incidental to the primary relief sought." Reape v. Adduci, 151 A.D.2d 290, 293, 542 N.Y.S.2d

562, 564 (1 st Dep't 1989). The determination of whether damages are incidental is "dependent

upon the facts and issues presented in a particular case." Odrich v. Turstees of Columbia

University, 2005 NY Slip. Op. 51857U *3 (New York Sup. Ct.) ( Cahn, J.S.C.). In general, a

claim for money damages has "been held to be incidental to the primary relief sought where the

petitioner's entitlement to the money damages in question is dependent upon, and follows as a

1 Although Petitioner worked at PS212K, he was on the payroll of PS153K. Carl SantaMaria, the principal of PS

153K, was therefore responsible for Petitioner's evaluation.

4

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Case 1:07-cv-05797-SHS Document 10 Filed 09/28/2007 Page 20 of 22
substantially automatic consequence of, a determination in the petitioner's favor with respect to

the issue(s) which are the primary focus of the Article 78 proceeding." Id., 2005 NY Slip. Op.

51857U at 3-4.

Here, Petitioner's claim for money damages is not incidental to the primary relief sought

nor can it be categorized as an automatic consequence of a determination in Petitioner's favor.

Petitioner asserts that he has lost financial benefits of $23,000 in 2005 and financial benefits in

excess of $500,000 in future years due to the reduction of income from the loss of his retention

right to earn extra income from DOE as a summer school teacher and per session home

instructor. Petitioner, however, presents no proof that he would have, in fact, earned $23,000 in

2005 by working as a summer school teacher and per session home instructor. Petitioner's

evidence that he will earn in excess of $500,000 in future years is also lacking. It is entirely

speculation for Petitioner to assert that he would have earned $23,000 in 2005 and $500,000 in

future years. Because Petitioner is speculating as to the amounts he would have earned, such

money damages cannot be incidental or be an automatic consequence of a determination in

Petitioner's favor. Hancock v. City of New York, 272 A.D.2d 80, 80-1, 707 N.Y.S.2d 832, 832-

3 (1 st Dep't 2000) (calculation of overtime excluded from plaintiff's award because it would

require speculation to estimate amount of overtime plaintiff would have worked).

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Case 1:07-cv-05797-SHS Document 10 Filed 09/28/2007 Page 21 of 22
CONCLUSION

For the foregoing reasons, the Verified Petition should be dismissed in its entirety.

Dated: New York, New York

March 16, 2007

MICHAEL A. CARDOZO

Corporation Counsel of the City of New York

Attorney for Respondent

100 Church Street, Room 2-170

New York, New York 10007

212-78

B :

Daniel Chiu

Assistant Corporation Counsel

Robert Katz,

Daniel Chiu,

Of Counsel

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