Frasier v. Board of Education

130 A.D.2d 746, 516 N.Y.S.2d 44, 1987 N.Y. App. Div. LEXIS 46759

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 1987
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78, inter alia, to compel the appellants to grant the petitioner retroactive reinstatement to his teaching position, the appeal is from a judgment of the Supreme Court, Kings County (Golden, J.), entered December 16, 1986, which granted the petitioner retroactive reinstatement to his teaching position together with retroactive seniority credit, back pay and benefits for the period from September 4, 1984 to March 25, 1985.

Ordered that the judgment is affirmed, with costs.

A teacher is entitled to a probationary position until his or her ouster is lawfully effected (Matter of Golomb v Board of Educ., 92 AD2d 256), and under Education Law § 2573 (1) (a), a probationary teacher’s services may be discontinued at any time during his or her probationary period, on the recommendation of the superintendent of schools, by a majority vote of the Board of Education, or by the Chancellor as its designee (Matter of Brown v Board of Educ., 42 AD2d 702, lv denied 34 NY2d 519). In light of the fact that the Chancellor rejected the recommendation by the Superintendent of the Bronx High Schools that the petitioner’s services be terminated, no lawful ouster was ever effected and the petitioner is accordingly entitled to retroactive reinstatement to his position, along with retroactive seniority credit, back pay and benefits from his unlawful ouster on September 4, 1984, until his reinstatement on March 25, 1985. Weinstein, J. P., Eiber, Spatt and Sullivan, JJ., concur.