Sachs v. Board of Education

71 A.D.2d 898, 419 N.Y.S.2d 622, 1979 N.Y. App. Div. LEXIS 13152

Opinions

—In a proceeding pursuant to CPLR article 78 to compel respondents to reinstate petitioner as a tenured teacher, following his dismissal upon a recommendation not to grant him tenure, the petitioner appeals from a judgment of the Supreme Court, Nassau County, dated September 20, 1978, which dismissed the petition. Judgment affirmed, with $50 costs and disbursements. Absent a constitutionally impermissible purpose, or the violation of a statutory proscription, a probationary employee "may be dismissed for almost any reason, or for no reason at all” (Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520, 525). Here, the petitioner alleges that he was denied tenure for the impermissible purpose of retaliating against him for his prior participation in an illegal strike. However, he has entirely failed to come forth with any evidentiary showing which would lend credence to his claim or which would require an evidentiary hearing. The petitioner’s efforts to controvert the six reasons which were given for the recommendation to deny him tenure are insufficient to raise triable issues. Although some of the reasons are subject to dispute, they are nevertheless not without support and at least one of the reasons (poor attendance record) is of obvious merit. It is plain that the six reasons were not mere subterfuge to achieve an impermissible end. Similarly, the respondents’ prior insistence that the petitioner be punished to the full extent of the law for his illegal strike activities does not imply a subsequent motivation to impermissibly exceed the available legal remedies. Indeed, the contrary inference is demonstrated by the respondents having granted tenure to 10 other persons who had participated in the strike and who were punished in the same manner as the petitioner. The record is devoid of any evidentiary showing on the ultimate issue of retaliation. In the absence of any indication that the petitioner’s claim is tenable or that there is a material issue which requires a hearing, it was proper to dismiss the petition (cf. James v Board of Educ., 37 NY2d 891). Lazer, J. P., Rabin and Margett, JJ., concur.