Handy v Board of Educ. of the Enlarged City School Dist. of Troy
Annotate this CaseDecided on October 29, 2010
Supreme Court, Rensselaer County
Kelly Handy, Petitioner,
against
Board of Education of the Enlarged City School District of Troy and Enlarged City School District of Troy, Respondents.
233740
Starvaggi Law Offices, P.C.
Attorneys For Petitioner
Michael A. Starvaggi, Esq., of counsel
719 West Nyack Road
Suite 44
West Nyack, New York 10994
Guercio & Guercio, LLP
Attorneys For Respondents
Kathy A. Ahearn, Esq., of counsel
24 Century Hill Drive
Suite 101
Latham, New York 12110
Henry F. Zwack, J.
In this CPLR Article 78 proceeding, petitioner seeks a judgment declaring that she has obtained tenure by estoppel or acquiescence, or alternatively that she was not given proper notice pursuant to Education Law § 3031(a) of the board meeting at which the recommendation against her tenure was to be considered.
Petitioner was hired by respondent Enlarged City School District of Troy on May 8, 2006 for the position of Director of Pupil Services and her three year probationary period was to end on May 7, 2009. In May 2009, the parties, through written agreement, extended petitioner's probationary period through May 7, 2010. The agreement reflects that petitioner's probationary period was extended to May 7, 2010 in lieu of the superintendent recommending that petitioner be denied tenure. In December 2009, petitioner was informed by letter that a tenure recommendation would not be made on her behalf by the superintendent and that her last day of employment would be June 30, 2010. Another letter was sent on April 13, 2010 to petitioner from the superintendent informing her that the board of education meeting on May 19, 2010 would be addressing the superintendent's recommendation that petitioner not be granted tenure. It is undisputed that the Board did not address petitioner's tenure on May 19, 2010. Petitioner and respondents apparently had certain discussions regarding the possibility of petitioner resigning rather than being terminated. The exact substance of those discussions is disputed between the parties, but it is undisputed that petitioner did not resign. It is also undisputed that petitioner's probationary period expired on May 7, 2010. At the meeting of the Board of Education on June 2, 2010, the Board voted to terminate petitioner with the effective date of June 30, 2010.
Petitioner argues that she has obtained tenure by acquiescence or estoppel and she seeks reinstatement as Director of Pupil Services with tenure and pay from the date her services were discontinued. Alternatively, petitioner seeks a declaration that she did not receive proper notice of the board meeting at which her tenure was to be considered and seeks pay through the date when the violation is cured.
In opposition, respondents submit objections in point of law that petitioner fails to state a cause of action or a clear legal right to the relief requested and that petitioner waived or is estopped from claiming tenure by estoppel.
Although granting tenure may only occur after expiration of the probationary period, in a case where tenure is being denied, the person's service must be discontinued prior to expiration of the probationary period (Education Law § 3012). In addition, the person must be given 30 days notice of the board meeting at which the superintendent's recommendation to deny tenure or discontinue service is to be considered (Education Law § 3031). Tenure by estoppel is obtained " when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of [the] probationary term.'" (Gould, 81 [*2]NY2d at 451).
By virtue of the fact that petitioner's probationary period expired on May 7, 2010, without the Board taking action prior to that date, and because respondents permitted petitioner to continue working past that date, the Court finds that petitioner achieved tenure by estoppel (Gould v Board of Education of the Sewanhoka Central School District, 81 NY2d 446, 451 [1993]; Maras v Board of Education of the City School District of the City of Schenectady, 275 AD2d 551 [3d Dep't 2000]). Regardless of whether petitioner made representations that she may or may not be resigning, this does not provide an excuse for respondents to have failed to follow the required procedures for denying petitioner tenure prior to the expiration of her probationary period, if that is what they wanted to do. The Court has also considered respondents' claims that petitioner waived her right to claim tenure by estoppel based upon the fact she had been advised that the superintendent would not be recommending that she be granted tenure. Petitioner was not required to respond to the superintendent's letters informing her that he would not be recommending that she receive tenure. As noted by petitioner, there is a statutory procedure in place when an administrator is to be denied tenure. The Court does not find any evidence that petitioner took any actions to knowingly and voluntarily waive the right to assert a claim of tenure by estoppel.
The Court also notes that it appears that respondents may not have been aware of the impact of their decision to allow petitioner to work through June 30, 2010. Case law is clear that even if respondents were unaware of the effect of allowing petitioner to continue working, this does not affect petitioner's ability to claim tenure by estoppel (Gould, 81 NY2d at 451).
Based upon the foregoing, the Court grants the petition and declares that petitioner obtained tenure by estoppel, as set forth above, that petitioner is entitled to reinstatement as Director of Pupil Services with tenure and with pay from the date her services were discontinued.
Accordingly, it is
ORDERED, the petition is granted, as set forth above.
This constitutes the Decision, Order and Judgment of the Court. This Decision, Order and
Judgment is returned to the attorneys for the petitioner. All other papers are delivered to the
Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision, Order
and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from
the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
Dated:October, 2010
[*3]
Troy, New York
________________________________________
Henry F. Zwack
Acting Supreme Court Justice
Papers Considered:
Notice of Petition dated July 16, 2010; Verified Petition; Affidavit of Kelly Handy sworn to July 12, 2010; together with Exhibits "A" through "C"; Memorandum of Law dated July 16, 2010;
Verified Answer dated September 15, 2010; Affidavit of Fadhilika Atiba-Weza sworn to September 10, 2010; together with Exhibit "A"; Affidavit of Nichelle Ribers sworn to September 13, 2010; Memorandum of Law dated September 15, 2010;
Reply dated September 21, 2010; Affidavit of Kelly Handy sworn to September 22, 2010;
Reply Memorandum of Law dated September 21, 2010.
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