De Paoli v. Board of Education

92 A.D.2d 894, 459 N.Y.S.2d 883, 1983 N.Y. App. Div. LEXIS 17287

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1983
• Status: Published

Opinion

— In a proceeding pursuant to CPLR article 78 to, inter alla, review a determination of respondents declining to reassign petitioner to the positions of athletic director and physical education department chairman for the 1982-1983 school year, petitioner appeals from a judgment of the Supreme Court, Westchester County (Daronco, J.), dated August 16,1982, which, upon respondents’ motion pursuant to CPLR 7804 (subd [f]), dismissed the petition. Judgment reversed, on the law, with $50 costs and disbursements, motion denied and petition reinstated. Respondents’ time to answer is extended until 10 days after service upon them of a copy of the order to be made hereon, with notice of entry. On a motion to dismiss a petition pursuant to CPLR 7804 (subd [f]), only the petition is to be considered and all of its allegations are to be deemed true (Matter ofCutcher v Nyquist, 39 AD2d 810). Since the petition alleges that the respondent board awarded petitioner tenure “as ‘Phys. Ed. Inst, and Dir. Athletics’ ” on April 14, 1971, that fact must be deemed true. Contrary to respondents’ contention, subdivision 1 of section 3813 of the Education Law is inapplicable since petitioner seeks to vindicate the public interest in the enforcement of tenure rights (Matter of Right v Wyandanch Union Free School Dist. [Wyandanch Public Schools], 84 AD2d 749, affd 56 NY2d 606; Matter ofPulver v Board of Educ., 80 AD2d 833; Matter ofFeinberg v Board ofEduc., 78 AD2d 889; Matter of Weisbarth v Board ofEduc., 76 AD2d 841; Matter of Gross v Board ofEduc., 73 AD2d 949, mot for lv to opp dsmd 49 NY2d 952; Matter ofTadken v Board of Educ., 65 AD2d 820, mot for lv to opp den 46 NY2d 711). Gibbons, J. P., Weinstein, Bracken and Niehoff, JJ., concur.