Sherman v. Board of Ed. of Hendrick Hudson Central School Dist.

• Citation: 88 Misc.2d 661,389 N.Y.S.2d 515
• Parties: Application of Ralph SHERMAN, Petitioner, For an Order and Judgment pursuant to Article 78 of the CPLR v. The BOARD OF EDUCATION OF the HENDRICK HUDSON CENTRAL SCHOOL DISTRICT et al., Respondents.
• Decision Date: 15 October 1976
• Court: United States State Supreme Court (New York)

Page 515

389 N.Y.S.2d 515

88 Misc.2d 661

Application of Ralph SHERMAN, Petitioner,

For an Order and Judgment pursuant to Article 78 of the CPLR

v.

The BOARD OF EDUCATION OF the HENDRICK HUDSON CENTRAL SCHOOL

DISTRICT et al., Respondents.

Supreme Court of New York, Westchester County.

Oct. 15, 1976.

James R. Sandner, New York City, for petitioner; Jonathan J. Braverman, New York City, of counsel.

Raymond G. Kuntz, Poughkeepsie, for respondents.

JAMES R. CARUSO, Acting Justice.

The above entitled Article 78 proceeding was instituted by Petitioner, a tenured teacher, to annul and vacate the determination of the Respondents terminating his services with the Respondent School District and refusing to reinstate him and for related relief.

The basis for said Petitioner's proceeding is that said determination was illegal, arbitrary and capricious.

The Respondents filed their Answer generally denying the allegations of the petition and set forth an affirmative defense praying for a dismissal of the proceeding for failure on the part of the Petitioner to initiate the proceeding within the time prescribed by statute.

This Court by decision dated June 13, 1975, at Special Term, determined that issues existed which precluded a determination upon the bare pleadings and argument and directed a trial. (Section 3212(c) CPLR; Section 7803(3) CPLR; Intercontinental Fur Corp. v. Goldstone, 30 A.D.2d 653, 291 N.Y.S.2d 48; Greenberg v. Bar Steel Construction Corp., 22 N.Y.2d 210, 292 N.Y.S.2d 404, 239 N.E.2d 343.)

The trial of the issues was held before this Court without a Jury as an Equity cause. The parties were represented by able and capable attorneys and their testimony as well as of their respective witnesses was heard and numerous exhibits offered and received into evidence on their behalf. Excellent post-trial briefs were filed by both counsel and have been extremely helpful to the Court.

After a careful review of the testimony, as kept by the Court, and after consideration of the exhibits, the following material facts emerge:

The Petitioner, a tenured mathematics teacher in the Respondent School District, on December 8, 1972, submitted a written letter as follows:

'Dear Dr. Jenkins:

This letter is to inform you officially of my intent To retire from teaching at the end of the first semester of the school year 1974--75. (Underscoring added.)

Very truly yours

Ralph Sherman'

The testimony indicates that Petitioner's intent to leave the system two years hence was to engage in some outside business or venture and to take advantage of the 'two year' increment payments in addition to his regular salary as provided for in the Bargaining Agreement then in force between the Respondent School District and the Teachers' Association. It was later revealed that this provision applied only to 'Retirement' (Section 510, Education Law) and not 'Termination of Service' (Section 3019--a, Education Law). The Petitioner thereafter continued teaching and received his regular salary and additional increment.

On January 22, 1974, the Respondents circulated to all teachers a written request to be completed as to any possible vacancies that might occur during 1974--1975 School Term. The Petitioner, in keeping with his intent to leave the system, answered by applying a cross mark to the statement:

'I plan to teach in H.H.H.S. next year until (sic) Jan. of 1975';

and signed and returned the request.

On March 25, 1974, the Respondent Board sent a written memoranda to all teachers (including Petitioner) indicating a 'follow up' survey listing existing vacancies (among which was listed Hendrick Hudson High School English-Math). The notice contained this significant language:

'Regardless of the listed vacancies you are urged to indicate any change you may desire in the future since this notice is the last formal survey to be taken.'

It was stated that said form containing area for 'comments' was to be returned to the District Office by Friday, April 5, 1974.

The Respondent Board receiving no written reply to the aforesaid notices on June 26, 1974 (a regular stated Board meeting) made the following appointment:

'Marcia B. Bailey--Secondary Mathematics at Hendrick Hudson High School, effective September 1, 1974, as follows: September 1, 1974, through January 31, 1975, permanent substitute at daily rate, February 1, 1975 (replacement for Ralph Sherman (probationary) B.A. Step 1, 1974--75 salary schedule'

and at the same meeting, accepted the notice of termination of the Petitioner as follows:

'Ralph Sherman, Secondary Mathematics, Hendrick Hudson High School, effective February 1, 1975.'

On July 3, 1974, the petitioner forwarded the following letter to Respondent Jenkins by registered mail, to wit:

'Dear Dr. Jenkins:

Please accept this letter as officially rescinding My intent to retire from teaching as of January 1975. (Underscoring added.)

Respectfully submitted,

Ralph Sherman'

On July 10, 1974, the Respondent Board replied by written letter, a portion of which follows:

'It is the intention of the Board of Education to proceed in accordance with the acceptance of your retirement effective February 1, 1975, and your request to rescind your retirement is hereby denied.'

Thereafter by letter dated August 5, 1974, the Petitioner returned the amounts received as 'increments' and stated he did not desire any further payment thereof and requested reconsideration of the Board's action taken at its meeting of June 26, 1974.

The Respondent Board by letter dated August 27, 1974, returned the checks sent by Petitioner and denied receipt of any written notice of any change of petitioner's plans after the initial letter of December, 1972, and reaffirmed its action taken in accepting Petitioner's resignation.

Petitioner thereafter initiated the within Article 78 proceeding but continued in the school system until February 1, 1975.

At the outset, the Court finds that the Respondents have not sustained their Affirmative Defense to dismiss the proceeding for failure to institute the same within the time allowed by statute. Accordingly, said Affirmative Defense is in all respects dismissed, without costs.

The Petitioner selected the form of proceeding sought to protect his legal rights. In selecting an Article 78 proceeding, the criterion of review by the Court is limited to whether upon the entire record the Respondents made their determination arbitrarily, capriciously, unreasonably or without any rational basis. (William H. Van Vlack, Inc. v. Klein, 49 Misc.2d 240, 267 N.Y.S.2d 229.)

Considering the responsibilities and legal limitations inherent in Respondents' powers and duties, it cannot be said upon the record developed herein that Respondents' determination was illegal, arbitrary or capricious or that they abused any discretion vested in them.

It is well settled under such circumstances that the Court will not substitute its Judgment for that of the Respondents. (Matter of Walker v. Murphy, 15 N.Y.2d 650, 255 N.Y.S.2d 869, 204 N.E.2d 201; Matter of Payton v. N.Y. City Transit Authority, 8 N.Y.2d 737, 201 N.Y.S.2d 108, 167 N.E.2d 649; Diocese of Rochester v. Planning Board, 1 N.Y.2d 508, 154 N.Y.S.2d 849, 136 N.E.2d 827.)

There was substantial evidence in the record to fully justify and support the action taken by the Respondents. (Colton v. Berman, 21 N.Y.2d 322, 287 N.Y.S.2d 647, 234 N.E.2d 679.)

Shorn of all the irrelevancies raised by the Petitioner and simply stated, there was presented herein a 'resignation' or 'notice to terminate services' made by the Petitioner, to be effective February 1, 1975.

Petitioner attempts to classify this as a 'retirement notice.' This is rejected by the Court as it was by the Respondents. The Petitioner knew or should know that at his age (he was admittedly under 60 years of age) and having not served for a period of 25 years, that he was not eligible for Retirement (with its pension benefits). Furthermore, such a notice (even if he qualified) would have been served upon the 'Retirement Board' (not the School Board) not less than thirty days nor more than sixty days prior to date of retirement. (Section 510, Education Law.)

The evidence was clear that Petitioner on December 8,...