Lewis v. Macchiarola

73 A.D.2d 663, 423 N.Y.S.2d 200, 1979 N.Y. App. Div. LEXIS 14507

Opinion

In a proceeding pursuant to CPLR article 78, inter alia, to compel the respondent chancellor of the board of education to grant the petitioner tenure as a principal in a day high school, the parties cross-appeal (by permission) from so much of an order of the Supreme Court, Kings County, dated April 4, 1979, as, (1) upon reargument, adhered to its original determination which denied the motion of the chancellor and board of education to dismiss the petition and (2) denied petitioner’s application for summary judgment. Order modified, on the law, by adding thereto provisions that so much of the original determination as denied the motion to dismiss the petition is vacated and that the motion to dismiss the petition is granted. As so modified, order affirmed insofar as appealed from, without costs or disbursements. Petitioner’s failure to avail himself of the remedy provided under the by-laws of the board of education and his collective bargaining agreement, precludes him from seeking judicial review of the determination to deny him tenure (see Matter of Benjamin v Macchiarola, 67 AD2d 974, mot for lv to app den 47 NY2d 708). Mollen, P. J., Titone, O’Connor and Mangano, JJ., concur.