66 A.D.2d 919 | N.Y. App. Div. | 1978
Appeal from a judgment of the Supreme Court at Special Term, entered October 15, 1976 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to vacate a determination of the Commissioner of Education. During the years 1962 through 1967 petitioner was a substitute teacher in the respondent school district. In November, 1967, she received a full-time probationary assignment as a high school science teacher. Effective June 30, 1968 she resigned her science teaching position and resumed substitute teaching during the academic years 1968 through 1971. She was then appointed a part-time high school teacher for the academic year 1971-1972. She received a full-time appointment as a general substitute teacher assigned to teach high school biology for the academic year 1972-1973. She then received a full-time appointment as a probationary teacher of health education for the academic year 1973-1974 and continued as such for the academic year 1974-1975. On February 26, 1975, petitioner was notified by the Superintendent of Schools that he would not recommend her for tenure. Pursuant to the requirements of section 3031 of the Education Law, petitioner was given a statement of the reasons why she was not being recommended for tenure and was permitted to respond in writing to the superintendent and board of education. On April 10, 1975, the board acted to terminate petitioner’s appointment effective June 30, 1975. Petitioner appealed her denial of tenure pursuant to section 310 of the Education Law. The Commissioner of Education found no basis for setting aside the decision of the superintendent and the appeal was dismissed. Petitioner commenced this article 78 proceeding. Special Term dismissed the petition and this appeal ensued. On appeal petitioner contends that Special Term erred because (1) due process required that she be given a hearing, (2) she had acquired tenure by acquiescence or estoppel prior to the board’s termination of her employment, and (3) the denial of tenure to her was an arbitrary and capricious act. We disagree. As to petitioner’s first contention, it is well settled that a probationary teacher may be dismissed without a hearing and without being given reason, except as provided in section 3031 of the Education Law (Matter of Tuller v Central School Dist. No. 1 of