| Matter of Rosenblum v New York City Conflicts of InterestBd. |
| 2010 NY Slip Op 05875 [75 AD3d 426] |
| July 1, 2010 |
| Appellate Division, First Department |
| In the Matter of Stephen Rosenblum, Respondent, v NewYork City Conflicts of Interest Board et al., Appellants. |
—[*1] Bruce K. Bryant, Brooklyn, for respondent. James R. Sandner, New York (Wendy M. Star of counsel), for amicus curiae.
Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered May 7, 2009,which, in this CPLR article 78 proceeding, granted the petition for a judgment prohibitingrespondents from proceeding with an administrative trial of petitioner, unanimously affirmed,without costs.
The court properly held that petitioner could seek a judgment prohibiting the enforcement ofthe conflict of interest law of the City of New York against him as a tenured pedagogueemployed by the Board of Education of the City of New York as there is no requirement forexhaustion of administrative remedies in an article 78 proceeding in the nature of a writ ofprohibition (see Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978])where, as here, the "legality of the [underlying New York City Office of Administrative Trialsand Hearings (OATH)] proceeding itself" was implicated (Matter of Johnson v Price, 28 AD3d 79, 82 [2006], quotingMatter of Hirschfeld v Friedman, 307 AD2d 856, 858 [2003]).
Here, the court properly held that the exclusive avenue to discipline a tenured pedagogue isEducation Law § 3020-a (see Education Law § 3020; 53 RCNY 2-02 [a]),and thus it would be violative of the Education Law to allow an OATH hearing which does notrequire the same procedural protections (compare Education Law § 3020-a [3] [c][i], and Matter of Board of Educ. of City School Dist. of City of N.Y. v Mills, 250 AD2d122 [1998], lv denied 93 NY2d 803 [1999], with 48 RCNY 1-46 [b]).
Further, the fine sought to be imposed by respondents is included in the types of disciplinespecifically enumerated by the statute as penalties: "a written reprimand, a fine, suspension for afixed time without pay, or dismissal" (Education Law § 3020-a [4] [a]).[*2]
We have considered appellants' remaining arguments andfind them unavailing. Concur—Mazzarelli, J.P., Renwick, Freedman, Richter andAbdus-Salaam, JJ. [Prior Case History: 2009 NY Slip Op 31073(U).]