Challenging the termination of a probationary teacher
Lewandowski v Clyde-Savannah Cent. Sch. Dist. Bd. of Educ., 2016 NY Slip Op 06594, Appellate Division, Fourth Department
A probationary teacher [Teacher] commenced an Article 78 proceeding seeking a court order annulling the Clyde-Savannah Central School District Board of Education's [Board] decision to discontinue her probationary appointment on the grounds that the Board’s decision was arbitrary and capricious, and an abuse of discretion. Teacher also asked the court to direct the Board to reinstate her to her probationary teaching position with back pay.
The Board moved to dismiss Teacher’s petition on the ground that she had failed to serve a notice of claim as mandated by §3813.1 of the Education Law. §3813.1 required that Teacher serve the notice of claim within three months after the claim arose. Supreme Court granted the Board’s motion to dismiss and Teacher appealed.
The Appellate Division sustained the lower court’s ruling, explaining that the service of a notice of claim is a "condition precedent to bringing an action against a school district or a board of education" and such service was required here. Further, said the court, Teacher had not commenced a special proceeding in the nature of mandamus seeking to vindicate a judicially enforceable right conferred on her by the law and thus her cause of action “is not exempt from the notice of claim requirement.”
Significantly, Lewandowski, a probationary employee, had not attained tenure in her position. In contrast, the Appellate Division, in Sephton v Board of Education of the City of New York, 99 AD2d 509, held that “the ‘tenure rights’ of teachers are ... considered a matter in the public interest and therefore Section 3813 is not applicable to cases seeking to enforce such rights.”
Further, New York courts have distinguished between proceedings “which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest; the provisions of subdivision 1 of section 3813 are applicable as to the former but not as to the latter” (see Union Free School Dist. No. 6 of Towns of Islip and; Smithtown v New York State Div. of Human Rights Appeal Bd., 35 NY2d 371, rearg denied 36 NY2d 807).
The decision is posted on the Internet at: