Rosenberg v. Board of Education of the Westbury Public Schools

51 A.D.2d 551, 378 N.Y.S.2d 433, 1976 N.Y. App. Div. LEXIS 10803

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 1976
• Status: Published

Opinion

In aproceeding pursuant to CPLR article 78 inter alia to review the respondent board of education’s termination of petitioner’s part-time employment as a teacher (the .petition demands declaratory relief), she appeals from a judgment of the Supreme Court, Nassau County, entered February 21, 1975, which dismissed the petition. Judgment affirmed, without costs. We deem the relief sought to be a review of the determination to summarily dismiss petitioner and other related relief. We concur with the views of Special Term that part-time teaching service does not constitute probationary service for the purpose of acquiring tenure (see Matter of Nyboe v Allen, 10 Misc2d 895, affd 7 AD2d 822; Matter of Zannitto, 14 Ed Dept Rep 16; Matter of Parker, 12 Ed Dept Rep 96; Matter of Sura, 12 Ed Dept Rep 81; Matter of Gates, 12 Ed Dept Rep 194). Nor can it be argued that petitioner acquired tenure by acquiescence and estoppel by virtue of certain actions taken by school officials contrary to the provisions of the Education Law which she relies on. "Tenure by acquiescence and estoppel may only be acquired through actual service beyond the term of probation” (Matter of Mugavin v Nyquist, 48 AD2d 727, 728; see, also, Matter of Gunthorpe v Board of Educ. of Union Free School Dist. No. 5, Town of Babylon, 41 Misc2d 757). As noted earlier, the necessary actual service must be full-time employment. Hopkins, Acting P. J., Martuscello, Margett, Christ and Shapiro, JJ., concur.