        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1064
CA 12-00050
PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND MARTOCHE, JJ.


IN THE MATTER OF KIMBERLY MARSHALL,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

PITTSFORD CENTRAL SCHOOL DISTRICT, BRENT
KECSCKEMETY, EDMUND STAROWICZ, JR., RAY
BROWN, KIM MCCLUSKI, IRENE FELDMAN NAROTSKY,
ALKA PHATAK, PETER SULLIVAN AND MARY ALICE
PRICE, SUPERINTENDENT, RESPONDENTS-RESPONDENTS.


VAN LOON MENARD, ROCHESTER (NATHAN A. VAN LOON OF COUNSEL), FOR
PETITIONER-APPELLANT.

HARRIS BEACH PLLC, PITTSFORD (DAVID J. EDWARDS OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS.


     Appeal from a judgment (denominated order) of the Supreme Court,
Monroe County (Thomas M. Van Strydonck, J.), entered October 5, 2011
in a proceeding pursuant to CPLR article 78. The judgment granted the
motion of respondents to dismiss the petition.

     It is hereby ORDERED that the judgment so appealed from is
affirmed without costs.

     Memorandum: Petitioner appeals from a judgment that granted
respondents’ motion to dismiss her petition, in which she alleged that
she is entitled to tenured status as a teacher with respondent
Pittsford Central School District (PCSD) and reinstatement as an
employee. We affirm.

     Petitioner was hired as a probationary fourth grade teacher with
PCSD in September 2007, with the expectation that her probationary
period would last for three years. At the end of her third
probationary year, however, petitioner was informed that she would not
be recommended to the Board of Education of PCSD (Board) for tenure.
In lieu of termination, petitioner entered into a Juul agreement with
PCSD (see Matter of Juul v Board of Educ. of Hempstead School Dist.
No. 1, 76 AD2d 837, 838, affd for reasons stated 55 NY2d 648, 649),
which granted her a fourth probationary year in exchange for the
waiver of her right to a claim of tenure by estoppel. The Juul
agreement was signed by petitioner, the Pittsford District Teacher’s
Association (PDTA) president, and respondent Mary Alice Price, the
PCSD Superintendent (Superintendent). The agreement was neither
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                                                         CA 12-00050

presented to nor ratified by the Board. Toward the end of her fourth
probationary year, petitioner was again informed by the Superintendent
that she would not be recommended for tenure, and she was further
informed that her appointment as a probationary teacher with PCSD
would end on June 30, 2011. The Board subsequently voted to deny
petitioner tenure, and petitioner’s service as a probationary teacher
ended on or about June 30, 2011. Petitioner thereafter commenced this
CPLR article 78 proceeding seeking, inter alia, reinstatement as an
employee teacher with PCSD with tenure, and judgment “declaring” that
she has tenure with PCSD.

     We note at the outset that this is properly only a proceeding
pursuant to CPLR article 78 rather than a hybrid declaratory judgment
action/CPLR article 78 proceeding “inasmuch as petitioner does not
‘challenge the constitutionality of any statutes or regulations’ ”
(Matter of Zehner v Board of Educ. of Jordan-Elbridge Cent. School
Dist., 91 AD3d 1349, 1349). Thus, Supreme Court properly limited its
determination to whether the PCSD’s action to deny tenure was made in
violation of lawful procedure, or was arbitrary and capricious or an
abuse of discretion.

     Although we agree with petitioner that a Juul agreement not
approved by a school board is an impermissible abdication of a school
board’s responsibility to act as trustee (see Education Law § 1710)
and manager (see § 1804 [1]) of the school district, we nevertheless
agree with respondent that petitioner is equitably estopped from
disaffirming the agreement despite the Board’s failure to authorize or
ratify it. “Equitable estoppel ‘is imposed by law in the interest of
fairness to prevent the enforcement of rights which would work a fraud
or injustice upon the person against whom enforcement is sought and
who, in justifiable reliance upon the opposing party’s words or
conduct, has been misled into acting upon the belief that such
enforcement would not be sought’ ” (Syracuse Orthopedic Specialists,
P.C. v Hootnick, 42 AD3d 890, 893, quoting Nassau Trust Co. v Montrose
Concrete Prods. Corp., 56 NY2d 175, 184, rearg denied 57 NY2d 674).
Although the applicability of equitable estoppel “ ‘is ordinarily a
question of fact for trial’ ” (id.), under these circumstances, the
applicability of that doctrine can be resolved as a matter of law.

     The Education Law requires that a superintendent make a
recommendation to a board of education as to whether to appoint on
tenure a teacher who reaches the expiration of his or her probationary
term (see § 3012 [2]), and “[t]he board of education may not grant
tenure in the absence of a positive recommendation of the
Superintendent” (Matter of Yanoff v Commissioner of Educ. of State of
N.Y., 66 AD2d 910, 920, lv denied 47 NY2d 711). Here, the
Superintendent unequivocally stated that she did not intend to
recommend petitioner for tenure at the end of her third probationary
year based on petitioner’s evaluations and input from the Principal.
Thus, in place of a recommendation by the Superintendent to the Board
that petitioner be denied tenure, the parties entered into the Juul
agreement. The agreement expressly provides that “the Superintendent
. . . has informed [petitioner] that she will not be recommended for
tenure at the end of her probationary period (June 30, 2010); and . .
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                                                           CA 12-00050

. the Superintendent has informed [petitioner] that she is willing to
recommend an extension of her probationary period for one year.” The
agreement further provides that petitioner “accepts the extension of
her probationary period until June 30, 2011,” and that she “agrees
that she waives any right to claim status as tenured teacher by
estoppel, acquiescence or any other reason as a result of this
extension.” We cannot agree with our concurring colleague that the
Juul agreement is an employment contract. An employment contract
typically would include terms of employment, including compensation
(see generally Education Law § 3011 [1]). Instead, we conclude that
petitioner’s “waiver [of her right to a claim of tenure] serves as the
quid pro quo for countervailing benefits” (Matter of Abramovich v
Board of Ed. of Cent. School Dist. No. 1 of Towns of Brookhaven &
Smithtown, 46 NY2d 450, 455, rearg denied 46 NY2d 1076, cert denied
444 US 845; see Juul, 76 AD2d at 838), i.e., “ ‘something for
something’ ” (Black’s Law Dictionary 1367 [9th ed 2009]). Rather than
setting forth the terms of employment, the agreement provides only
that petitioner waived a tenure right in exchange for a fourth
probationary year to “demonstrate [her] competence as a teacher rather
than be dismissed” (Juul, 76 AD2d at 838).

     “ ‘Parties cannot accept benefits under a contract fairly made
and at the same time question its validity’ ” (R.A.C. Holding v City
of Syracuse, 258 AD2d 877, 878, quoting Svenska Taendsticks Fabrik
Aktiebolaget v Bankers Trust Co., 268 NY 73, 81). Inasmuch as the
record establishes that the Juul agreement was fairly made, we
conclude that petitioner is estopped from challenging its validity,
including the waiver of her right to tenure by estoppel contained
therein (see id.; see also Lordi v County of Nassau, 20 AD2d 658, 659-
660, affd 14 NY2d 699; Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1,
13, lv denied 12 NY3d 715).

     We have reviewed the remaining contentions of the parties and
conclude that they are without merit.

     All concur except FAHEY, J., who concurs in the result in the
following Memorandum: I respectfully concur in the result reached by
the majority, namely, the affirmance of the judgment granting
respondents’ motion to dismiss the petition. I agree with petitioner
and the majority that a Juul agreement (see Matter of Juul v Board of
Educ. of Hempstead School Dist. No. 1, 76 AD2d 837, 838, affd for
reasons stated 55 NY2d 648, 649) not approved by a school board is an
impermissible abdication of a school board’s responsibility to act as
trustee (see Education Law § 1710) and manager (see § 1804 [1]) of the
school district. I write separately, however, because unlike the
majority I conclude that a Juul agreement is an employment contract
and should be characterized as such.

     The agreement at issue here had a distant   genesis in the
agreement before the Second Department and the   Court of Appeals in
Juul. There, a teacher nearing the end of his    probationary period was
offered an additional year of probation by the   school board in
exchange for his agreement to waive his tenure   rights (id. at 837).
                                   -4-                         1064
                                                          CA 12-00050

The teacher signed an agreement that, according to the record on
appeal in Juul, was approved by the school board, and during the next
school year the teacher was informed by the district superintendent of
that administrator’s intent to recommend that the teacher be denied
tenure (id. at 837-838).

     The teacher subsequently commenced a CPLR article 78 proceeding
contending that the subject agreement was a nullity. The Second
Department rejected that contention, concluding that “under certain
circumstances a probationary teacher who is aware that a board of
education intends to deny him tenure[] may validly waive his right to
tenure and be employed for an additional year without acquiring tenure
as a quid pro quo for reevaluation and reconsideration of the tenure
determination at the end of the extra year” (id. at 838). The Second
Department determined that, “in [those] circumstances, [the teacher’s]
open, knowing and voluntary waiver is valid and should be enforced”
(id. [emphasis added]; see Matter of Feinerman v Board of Coop. Educ.
Servs. of Nassau County, 48 NY2d 491, 496-497 [holding that a
probationary teacher may waive an expectation of tenure]), and the
Court of Appeals subsequently affirmed for reasons stated at the
Second Department (55 NY2d 648).

     Although the Education Law does not define an employment contract
(see § 2), Education Law § 3011 (1) supports respondents’ position
that the Juul agreement is not an employment contract because it
describes some of the terms of an employment contract, and the
agreement at issue does not address all of those terms. Section 3011
(1) concerns the employment of teachers and requires a school board
employing a teacher to cause a written contract to be made with that
teacher “detail[ing] the agreement between the parties, and
particularly the length of the term of employment, the amount of
compensation and the time when such compensation shall be due and
payable” (emphasis added). The agreement at issue considers an
extension of petitioner’s probationary period, but does not address
any issue of petitioner’s compensation.

     The fact remains that the obvious and direct effect of the
agreement at issue was to secure and extend petitioner’s employment
with respondent Pittsford Central School District (PCSD), and I thus
conclude that it is an employment contract that includes a waiver. As
a practical matter, based on the intent of respondent Mary Alice
Price, the PCSD superintendent (Superintendent), not to recommend
petitioner for tenure at the end of petitioner’s third probationary
year, petitioner would have been terminated had she not signed the
agreement at issue (see Matter of Yanoff v Commissioner of Educ. of
State of N.Y., 66 AD2d 919, 920, lv denied 47 NY2d 711 [“(T)he board
of education may not grant tenure in the absence of a positive
recommendation of the Superintendent”]; see also Education Law §
3031).

     Like the   majority and as noted, I further conclude that a Juul
agreement not   approved by a school board is an impermissible
abdication of   a school board’s responsibility to act as trustee (see
Education Law   § 1710) and manager (see § 1804 [1]) of the school
                                 -5-                          1064
                                                         CA 12-00050

district. It is beyond the power of a board of education to surrender
those duties conferred upon it by the Education Law (see e.g. Board of
Educ., Great Neck Union Free School Dist. v Areman, 41 NY2d 527, 533
[recognizing that “a board of education has the right to inspect
teacher personnel files and has no power to bargain away such right”];
Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d
774, 777 [“(T)he authority and responsibility vested in a school board
under the several provisions of the Education Law to make tenure
decisions cannot be relinquished”]), and contracting with and
employing teachers is one of the powers of a board of education (see §
1709 [16]).

     During a probationary period, a teacher is an at-will employee
whose services may be terminated at any time (see Haviland v Yonkers
Pub. Schools, 21 AD3d 527, 529). Pursuant to the Education Law,
however, the termination of such an employee is contingent upon the
recommendation of the superintendent (see § 3012 [1] [a] [“The service
of a person appointed to (a probationary position referenced in that
section) may be discontinued at any time during such probationary
period, on the recommendation of the superintendent of schools, by a
majority vote of the board of education or the trustees of a common
school district” (emphasis added)]; Appeal of Janes, 33 Ed Dept Rep 6
[Decision No. 12,957] [“Education Law § 3012 provides that the
services of a probationary teacher may be discontinued at any time
during the probationary appointment upon recommendation of the
superintendent” (emphasis added)]). Here, through the agreement at
issue the Superintendent granted petitioner an extra year of probation
at the conclusion of her appointed probation period of three years
without the knowledge and approval of the Board and without taking a
position before the Board on her tenure status (compare § 3012 [1] [a]
[providing for a three-year probationary period] with § 3012 [2]
[requiring the superintendent to recommend or deny tenure “(a)t the
expiration of the probationary term of a person appointed for such
term” (emphasis added)]). In doing so, the Superintendent effectively
denied the Board, i.e., the body that controls the employment of
teachers, the opportunity to determine whether to override the
Superintendent’s recommendation to extend petitioner’s probationary
appointment and continue its investment in petitioner as a
probationary employee, or to deny petitioner tenure at that juncture
and pursue other means of filling her position.

     Put differently, when the three-year probationary period to which
petitioner was entitled under Education Law § 3012 (1) (a) expired,
the Superintendent, not the Board, made the decision to lengthen the
probationary period and employ petitioner for a fourth year. I
conclude that the administrative handling and approval of a Juul
agreement is contrary to the Education Law’s proviso that “[t]he . . .
board of education of every union free school district shall have
power, and it shall be its duty . . . [t]o contract with and employ
such persons as by the provisions of this chapter are qualified
teachers” (§ 1709 [16]). To hold otherwise would countenance the
usurpation of the power of an elected body by the bureaucracy that it
is intended to supervise.
                                 -6-                         1064
                                                        CA 12-00050

     Having concluded that the agreement at issue is an employment
contract, I now turn to respondents’ contention that petitioner is
estopped from disaffirming it despite the Board’s failure to authorize
or ratify it. “ ‘[T]he doctrine of equitable estoppel is to be
invoked sparingly and only under exceptional circumstances’ ” (Townley
v Emerson Elec. Co., 269 AD2d 753, 753-754), and “ ‘[e]stoppel is
ordinarily a question of fact for trial’ ” (Syracuse Orthopedic
Specialists, P.C. v Hootnick, 42 AD3d 890, 893). Under these
circumstances, however, the issue of the applicability of the doctrine
of equitable estoppel can be resolved as a matter of law against
petitioner for the reasons set forth by the majority.




Entered:   November 16, 2012                   Frances E. Cafarell
                                               Clerk of the Court
