Lewandowski v. Clyde–Savannah Cent. Sch. Dist. Bd. of Educ.

• Decision Date: 07 October 2016
• Citation: 143 A.D.3d 1278,38 N.Y.S.3d 498 (Mem),2016 N.Y. Slip Op. 06594
• Parties: In the Matter of Anna V. LEWANDOWSKI, Petitioner–Appellant, v. CLYDE–SAVANNAH CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, Clyde–Savannah Central School District, Theresa L. Pulos, Superintendent of Schools of the Clyde–Savannah Central School District and Craig Pawlak, Principal of the Clyde–Savannah Junior Senior High School, Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 1278

38 N.Y.S.3d 498 (Mem)

2016 N.Y. Slip Op. 06594

In the Matter of Anna V. LEWANDOWSKI, Petitioner–Appellant,

v.CLYDE–SAVANNAH CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, Clyde–Savannah Central School District, Theresa L. Pulos, Superintendent of Schools of the Clyde–Savannah Central School District and Craig Pawlak, Principal of the Clyde–Savannah Junior Senior High School, Respondents–Respondents.

Supreme Court, Appellate Division, Fourth Department, New York.

Oct. 7, 2016.

Appeal from a judgment (denominated order and judgment) of the Supreme Court, Wayne County (Dennis M. Kehoe, A.J.), entered February 27, 2015 in a proceeding pursuant to CPLR article 78. The judgment granted respondents' motion to dismiss the petition.

Jeffrey Wicks, PLLC, Rochester (Charles D. Steinman of Counsel), for petitioner-appellant.

Harter Secrest & Emery LLP, Buffalo (Amy L. Hemenway of Counsel), for respondents-respondents.

MEMORANDUM:

Petitioner commenced this CPLR article 78 proceeding seeking annulment of respondent Clyde–Savannah Central School District Board of Education's determination to discontinue her probationary appointment on the grounds that it was arbitrary and capricious, and an abuse of discretion. Petitioner sought, inter alia, reinstatement to her probationary teaching position with back pay.

We conclude that Supreme Court properly granted respondents' motion to dismiss the petition on the ground that petitioner failed to serve pursuant to Education Law § 3813(1)

a notice of claim within three months after the claim arose. Service of a notice of claim is a “condition precedent to bringing an action against a school district or a board of education” (Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 547, 470 N.Y.S.2d 564, 458 N.E.2d 1241 ), and such service was required here. We conclude that petitioner has not commenced a special proceeding in the nature of mandamus seeking to vindicate a judicially enforceable right conferred on her by the law (cf.

Matter of Speis v. Penfield Cent. Schs., 114 A.D.3d 1181, 1183, 980 N.Y.S.2d 642 ; Matter of

Brunecz v. City of Dunkirk Bd. of Educ., 23 A.D.3d 1126, 1127, 804 N.Y.S.2d 203 ; Matter of Piaggone v. Board of Educ., Floral Park–Bellrose Union Free Sch. Dist., 92 A.D.2d 106, 108, 459 N.Y.S.2d 629 ). Therefore, contrary to petitioner's contention, this case “is not exempt from the notice of claim requirement” (Matter of Silvernail v. Enlarged City Sch. Dist. of Middletown, 40 A.D.3d 1004,...