Labor & Employment Law

Attorney sued after failing to file a proper request for a Section 3020-a disciplinary hearing

Abreu v Quesada, 2008 NY Slip Op 08420, decided on November 6, 2008, Appellate Division, First Department

Section 3020-a(2)(c) of the Educatiion Law requires that the individual upon whom disciplinary charges have been filed take action as follows: ?(c) Within ten days of receipt of the statement of charges, the employee shall notify the clerk or secretary of the employing board in writing whether he or she desires a hearing on the charges and when the charges concern pedagogical incompetence or issues involving pedagogical judgment, his or her choice of either a single hearing officer or a three member panel. All other charges shall be heard by a single hearing officer.?

Significantly, Section 3020-a(2)(d) of the Education Law, in pertinent part, provides that ?The unexcused failure of the employee to notify the clerk or secretary of his or her desire for a hearing within ten days of the receipt of charges shall be deemed a waiver of the right to a hearing.?

There was no dispute that Leticia Abreu?s attorney, Jose A. Quesada, Esq., failed to file a proper request for a hearing pursuant to Education Law 3020-a(2)(c) and Abreu was terminated from her position without a hearing.

Quesada?s failure to file a ?proper request? for a hearing resulted in Abreu losing pay and benefits to which she otherwise would have been entitled pursuant to Section 3020-a(2)(b) of the Education Law pending the promulgation of a final administrative decision following the Section 3020-a disciplinary hearing.

Abreu then retained other counsel and commence an Article 78 proceeding against the Board of Education in an effort to obtain a Section 3020-a disciplinary hearing.

Abreu also sued Quesada, alleging ?legal malpractice.?

Rejecting Quesada?s motion to dismiss her malpractice claim, the Appellate Division said that the fact that Abreu had obtained a partial grant of her Article 78 petition against the Board of Education ?does not collaterally estop her from asserting [Quesada?s] legal malpractice.?

The court then affirmed an order issued by Supreme Court Justice Alan Saks granting Abreu?s motion for partial summary judgment on the issue of Quesada?s liability for legal malpractice.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08420.htm

Full post as published by New York Public Personnel Law on November 07, 2008 (boomark / email).