SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
June 27, 1968
IN THE MATTER OF THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF POUGHKEEPSIE, APPELLANT,
JAMES E. ALLEN, JR., AS COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK, RESPONDENT
Gibson, P. J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Gibson, P. J.
Appeal from a judgment of the Supreme Court at Special Term which dismissed for insufficiency, upon sustaining respondent's objections in point of law (CPLR 7804, subd. [f]), the petition of appellant Board of Education in a proceeding under article 78 of the CPLR to review and annul a determination of respondent Commissioner of Education which sustained the appeal of Marlene Sperling from the action of the Board of Education in terminating her appointment as a teacher and directed her reinstatement. The facts and the issues arising upon them are well outlined in the comprehensive opinion of Mr. Justice Koreman at Special Term. (52 Misc. 2d 959.) We perceive no basis whatsoever for disturbing the respondent Commissioner's findings that Mrs. Sperling's request for a maternity leave of absence did not constitute a resignation; that her service was not then discontinued in the manner provided by the governing statute, that is, "on the recommendation of the superintendent of schools, by a majority vote of the board of education" (Education Law, § 2509, subd. 1); and hence "that [she] did not resign and that she was not removed in accordance with law." It follows that there was no board action at the time from which Mrs. Sperling was obliged to appeal to the Commissioner and that, therefore, no issue of laches arose; and, consequently, that her appeal from the board's action to remove her in 1965 was timely. We find well within the areas of discretion and of policy decision committed to the Commissioner, his determination that probationary teachers are entitled to maternity leaves of absence, under established principles long recognized and applied in respect of teachers enjoying tenure. It follows, from the conclusions stated, that no basis exists for the claim of estoppel asserted by appellant.
Judgment affirmed, without costs.
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