| Timmerman v Board of Educ. of City School Dist. of City ofN.Y. |
| 2008 NY Slip Op 03969 [50 AD3d 592] |
| April 29, 2008 |
| Appellate Division, First Department |
| Dolph Timmerman, Appellant, v Board of Education of theCity School District of the City of New York et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (John Hogrogian of counsel), forrespondents.
Order and judgment (one paper), Supreme Court, New York County (Kibbie F. Payne, J.),entered February 6, 2007, which denied the petition and dismissed the proceeding broughtpursuant to CPLR article 78 seeking to direct respondents to reimburse petitioner the expenses heincurred in defense of criminal charges leveled against him by two of his students, unanimouslyreversed, on the law, without costs, and the petition granted.
"Judicial review of the propriety of any administrative determination is limited to thegrounds invoked by the agency in making its determination" (Matter of Missionary Sisters ofSacred Heart, Ill. v New York State Div. of Hous. & Community Renewal, 283 AD2d 284,288 [2001]). In denying petitioner's request to be reimbursed for attorneys' fees and expenses,respondents merely said that his "criminal proceeding does not fall within the scope of EducationLaw § 3028." At the agency level—as opposed to their response to thepetition—respondents made no pronouncements about the meaning of the phrase "arisingout of" in Education Law § 3028. Thus, while deference is appropriate to an agency's"specific application of a broad statutory term" (Matter of O'Brien v Spitzer, 7 NY3d 239, 242 [2006] [internalquotation marks and citations omitted]), there was no agency interpretation in the instant case.Accordingly, since the record shows that the criminal proceeding against petitioner clearly aroseout of disciplinary actions that he took against pupils, respondents should reimburse petitionerfor the attorneys' [*2]fees and expenses he incurred in defendinghimself (see Matter of Cutler v Poughkeepsie City School Dist., 73 AD2d 967 [1980]).Concur—Saxe, J.P., Nardelli, Buckley and Catterson, JJ.