Barbaccia v. Board of Education of Locust Valley Central School District

282 A.D.2d 674, 723 N.Y.S.2d 407, 2001 N.Y. App. Div. LEXIS 5163

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 23, 2001
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Education of the Locust Valley Central School District denying the petitioner tenure and terminating his employment as a Social Studies teacher, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Winslow, J.), entered November 29, 1999, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The petitioner failed to demonstrate that he performed the “services of a regular substitute” (Matter of Speichler, 90 NY2d 110). The Supreme Court properly concluded that the petitioner, who had been hired as an “English/Social Studies permanent per diem substitute,” was not entitled to credit for the disputed term (see, Education Law § 2509 [1] [a]; Matter of Speichler, supra). Contrary to the petitioner’s contention, he did not “take over” a particular class for any sustained duration of time, either for the full term or for any substantial portion thereof. The petitioner received different assignments each day, substituting for different teachers and in different subject areas. For approximately one third of the term, the petitioner did not receive any substitution assignments, although he performed other duties for the school. Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding. O’Brien, J. P., S. Miller, Friedmann and Townes, JJ., concur.