Petitioner brings an Article 78 proceeding, under motion sequence number one, seeking Court review of the respondents' determination to deny her application to become a substitute teacher. Respondents jointly cross-move, under motion sequence number two, for a judgment dismissing the petition pursuant to CPLR §§ 7804(f) on a point of law and 3211(a)(7) for failure to state a cause of action. In the alternative, petitioner [*2]seeks time to answer the petition.

Petitioner is 37 years old, married and a graduate student studying childhood education at Hunter College. She is also an honor student and a recipient of a CUNY's Teachers as Leaders program scholarship. In July of 2007, she submitted an application to the New York City Department of Education (DOE) to become a substitute teacher. By letter dated February 4, 2009, DOE informed her that it denied her application based on certain statements she made during her background interview and based on a 1993 Family Court case in Oregon in which custody of her two year old daughter was granted to the child's father. DOE stated that in pertinent part, these facts "raises concern as to your ability to satisfactorily perform the duties of a substitute teacher. In light of this, granting employment will pose an unreasonable risk to the safety and welfare of the school community. " Petitioner requested in writing that DOE identify and provide a copy of the adverse statements she allegedly made during her background investigation. DOE did not respond to her request. Petitioner claims, inter alia, that the denial of her application was arbitrary and capricious and in violation of Executive Law 296(15) and various sections of Correction Law Article 23-A.

On June 3, 2009, plaintiff filed a notice of petition and petition with four annexed exhibits labeled A through D. Exhibit A is a letter dated February 4, 2009, sent by Andrew Gordon, the Director of Employee Relations for DOE, denying her application to work as a substitute teacher. Exhibit B is a letter dated April 2, 2009, sent by petitioner's counsel in response to DOE's aforementioned February 4, 2009. Petitioner requested in writing the statements she allegedly made in her background investigation which DOE relied upon to deny her application. Exhibit C is a document filed with the Circuit Court of the State of Oregon Multnomah County on December 6, 1993 and pertains to the petitioner's past custody case. Exhibit D purports to be a record of the Municipal Court of Seattle pertaining to court cases of the petitioner.

Respondents' cross motion for dismissal consists of a memorandum of law. Petitioner submitted a memorandum of law in opposition to the cross-motion and the respondents replied with another memorandum of law in further support of their motion to dismiss.

The Court of Appeals has summarized the contours of mandamus to review as follows: "In a proceeding in the nature of mandamus to review, ... a court examines an administrative action involving the exercise of discretion. Mandamus to review resembles certiorari, except that in a certiorari proceeding, a quasi-judicial hearing normally is required and the reviewing court has the benefit of a full record. The standard of review in a certiorari proceeding is "substantial evidence".... In a mandamus to review proceeding, however, no quasi-judicial hearing is required; the petitioner need only be given an opportunity "to be heard" and to submit whatever evidence he or she chooses and the agency may consider whatever evidence is at hand, whether obtained through a hearing or otherwise. The standard of review in such a proceeding is whether the agency determination was arbitrary and capricious or affected by an error of law. " Scherbyn v. Wayne-Finger Lakes Bd. of Co-op. Educational, 77 NY2d 753, [1991]), (Vincent C. Alexander, Practice Commentaries, McKinney's CPLR 7801 at C7801:3).

Article 23-A of the Correction Law at § 752 prohibits unfair discrimination against persons previously convicted of a criminal offenses for any license or employment under certain circumstances. Executive Law §296 (15) similarly prohibits unlawful discriminatory practice against a person previously convicted of an offense when such denial is in violation of the provisions of article twenty-three-A of the correction law.

Petitioner seeks review of the DOE's determination to deny her application to become a substitute teacher. DOE's denial is an administrative action involving the exercise of its discretion. The instant Article 78 falls within the category of a mandamus to review and the standard of review is whether DOE's determination "was arbitrary and capricious, lacked a rational basis or affected by an error of law." (Board of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., 91 NY2d 133, 138 [1997]).

DOE cross- moves to dismiss the petition pursuant to CPLR § 7804(f) on a point of law and CPLR § 3211(a)(7) for failure to state a cause of action. Objections in point of law are the same types of defenses than can be asserted in a pre-answer motion to dismiss as provided in CPLR § 3211(a). On a motion pursuant to CPLR § 7804(f) to dismiss a petition upon an objection in point of law, only the petition is to be considered and all of its allegations are deemed true (Long Island Contractors' Ass'n v. Town of Riverhead, 17 AD3d 590, 594 [2nd Dept., 2005]). In a motion to dismiss pursuant to CPLR § 3211(a)(7), a court must liberally construe the complaint and accept as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion (511 West 232nd Owners Corp., v. Jennifer Realty Co., 98 NY2d 144, 152 [2002]). The motion must be denied if from the pleadings' four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law (Id.).

Petitioner alleges that DOE's denial of her application was arbitrary and capricious and in violation of Correction Law Article 23-A and Executive Law 296(15). Correction [*4]Law Article 23-A prohibits unlawful discrimination against persons previously convicted of a criminal offenses in obtaining licenses or employment under certain circumstances.Executive Law 296(15) is part of the New York States Human Rights Law and prohibits any governmental entity from denying a license or employment to a person contrary to Correction Law Article 23-A.

According to the allegations of fact asserted in the petition, when the petitioner applied to become a teacher she had not been convicted of a criminal offense. Respondents rely on this fact to dismiss the petition pursuant to CPLR §§ 7804(f) and 3211(a)(7). Respondents correctly contend that the statutory protection contemplated by Correction Law Article 23-A and Executive Law 296(15) are for people convicted of a criminal offense and since she has no convictions they do not apply to her. While the respondents' analysis of these statutes is accurate it does necessarily follow that the petition must be dismissed.

Petitioner claim that DOE's denial of her application was arbitrary and capricious articulates an independent claim and requires a review of the allegation of the petition to search for a cognizable claim. Petitioner claim is that the DOE acted irrationally when it denied her claim based on a neglect petition filed against her and the fact that she had been arrested in the past. There is no dispute that the neglect petition and her arrests were resolved more than thirteen years prior to the date of her DOE application. There is also no dispute that her prior arrests were resolved with no public record and therefore no conviction to any criminal offense. The Court of Appeals explained the nature of the arbitrary and capricious standard, (See, Pell v. Board of Ed. of Union Free School Dist. No. 1, 34 NY2d 222 [1974]), "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." Id. at 231. The question, said the Court, is whether the determination has a "rational basis." Id.

Petitioner's allegations of fact make out a cognizable claim (see, Acosta v. New York City Department of Education, 62 AD2d 455 [2nd Dept., 2009]). In the Acosta case, the Appellate Division found the denial of an employment application based on a thirteen year old conviction for armed robberies committed when the petitioner was a seventeen year old high school student was arbitrary and capricious. It seems clear that a denial of employment based on arrests which occurred more than thirteen years ago and which yielded no convictions would also be arbitrary and capricious. It seems equally clear that a similarly dated neglect petition when the petitioner was a teenager would also be an arbitrary and capricious basis to deny an application for employment.

However, the court has not converted the papers to a summary judgment application. The courts analysis is therefore limited to determining whether the petitioner has stated an actual controversy and a cognizable claim. The petition demonstrate the existence of a bona fide justiciable controversy which should be addressed. Thus, the plaintiffs have made a sufficient showing to withstand the defendants' motion to dismiss the complaint pursuant to CPLR §§ 7804(f) and 3211(a)(7). [*5]

Respondents cross-motion to dismiss the petition is denied and their time to serve an answer to the petition is extended until 15 days after service upon them of a copy of this decision and order with notice of entry.

The foregoing constitutes the decision and order of this court.

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