43 A.D.2d 630 | N.Y. App. Div. | 1973
Appeal from a judgment of the Supreme Court at Special Term, entered March 28, 1973 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Commissioner of Education. The respondent initially contends that judicial review of his decision is precluded by section 310 off the Education Law. It is now established that decisions of the commissioner involving the construction of a statute and questions of law will be reviewed by the courts upon the basis that if there has been error by the respondent in his determination of legal issues, such error would be arbitrary. (See Matter of Boss v. Wilson, 308 N. Y. 605; Matter of Board of Educ., Gent. School Dist. No. 2, Town of Oyster Bay v. Nyquist, 36 A D 2d 199; Matter of Board of Educ., Union Free School Dist. No.’6 v. Allen, 29 A D 2d 24.) A review of the commissioner’s decision establishes that his determination was premised upon a construction of article 52-A of the Education Law added by chapter 330 of the Laws of 1969 as effective July 1, 1970: The respondent found that the appellant had attained tenure as an assistant elementary principal in the New York City School system and that she had such tenure prior to leaving such supervisory position with Community District No. 19 in 1970. The appellant, on July 1, 1970, entered into a contract with Community District No. 23 to serve as its Community Superintendent. (See Education Law, §§ 2590-e, 2590-f.) The respondent has found that the