Mugavin v. Nyquist

• Decision Date: 08 May 1975
• Citation: 367 N.Y.S.2d 604,48 A.D.2d 727
• Parties: In the Matter of Maureen MUGAVIN, Appellant, v. Ewald B. NYQUIST, as Commissioner of Education of the State of New York, etal., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 604

367 N.Y.S.2d 604

48 A.D.2d 727

In the Matter of Maureen MUGAVIN, Appellant, v. Ewald B. NYQUIST, as Commissioner of Education of the State of New York, etal., Respondents.

Supreme Court, Appellate Division, Third Department.

May 8, 1975.

Bernard F. Ashe, Albany, for appellant (Ivor R. Moskowitz, Albany, of counsel).

Robert D. Stone, Albany, for respondent Nyquist (Louis H. J. Welch, Albany, of counsel).

Edward T. O'Brien, Garden City, for respondent Bd. of Ed., Union Free School Dist. No. 11, Town of Hempstead, Nassau County.

Before SWEENEY, J.P., and KANE, MAIN, LARKIN and REYNOLDS, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court at Special Term, entered August 15, 1974 in Albany County, which denied petitioner's application, in a proceeding pursuant to CPLR article 78 to annul the decision of the Commissioner of Education which upheld the determination of respondent Board of Education denying petitioner tenure and terminating her services.

For purposes of this appeal, it is agreed that petitioner's probationary period as a teacher in the employ of the respondent board commenced on February 1, 1969, the effective date of her employment to fill the vacant regular position of a language teacher who had resigned. At that time, pursuant to section 3012 of the Education Law, her probationary term was for three years and would have expired on February 1, 1972, but subsequent statutory amendments (L.1971, ch. 116; L.1971, ch. 1102; L.1972, ch. 953) had the net result of postponing the expiration date until June 30, 1972. On August 1, 1972, despite the fact that she had received the favorable recommendation of the superintendent of schools, the board voted to deny petitioner tenure and, in a letter to her the following day, cited her attendance record during the probationary period as a basis for its action. After she then submitted a statement from her personal physician in regard to her health and the dates on which she had received medical treatment, the board reconsidered and confirmed its original decision on August 15, 1972. Both the Commissioner of Education and Special Term sustained this result and, accordingly, this appeal ensued.

At the outset, we note that section 310 of the Education Law does not prevent judicial review of a decision of the Commissioner which is purely arbitrary or illegal, such as an erroneous determination on a question of law (Matter of Board of Educ. of City of New York v. Nyquist, 37 A.D.2d 642, 322 N.Y.S.2d 370, affd. 31 N.Y.2d 468, 341 N.Y.S.2d 441, 293 N.E.2d 819). Also, since section 3012 of the Education Law creates no contractual or vested rights in petitioner, but merely declares legislative policy (see La Polla v. Board of Educ. of City of New York, 172 Misc. 364, 15 N.Y.S.2d 149, affd. 258 App.Div. 781, 15 N.Y.S.2d 721, affd. 282 N.Y. 674, 26 N.E.2d 807), amendments thereto subsequent to petitioner's original appointment could serve to alter her probationary term without impairing any contractual obligations.

With these factors in mind, we find petitioner's argument that she obtained tenure by acquiescence and estoppel to be without merit. The...