IN RE: Patrick J. AIEVOLI (1999)

In a proceeding pursuant to CPLR article 78 to review a determination of the State University of New York dated July 10, 1997, denying the petitioner tenure, the appeal is from an order of the Supreme Court, Nassau County (Winick, J.), entered June 12, 1998, which granted the petitioner's application to the extent that it annulled the determination and remitted the matter for further review.

ORDERED that on the court's own motion, the appellants' notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701[c] );  and it is further,

ORDERED that the order is affirmed, with costs.

 The Supreme Court properly found that the appellants' determination denying the petitioner tenure based upon his failure to attain his Master's degree in a timely manner was arbitrary and capricious (cf., Matter of Harrison v. Goldstein, 204 A.D.2d 451, 611 N.Y.S.2d 623, citing Pell v. Board of Educ. Union Free School Dist., 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321).   Further, the Supreme Court properly found that there was no evidentiary support to substantiate the appellants' claim that the denial of tenure was based upon a lack of commitment on the part of the petitioner, and that denial of tenure on this basis also was arbitrary and capricious (cf., Matter of Harrison v. Goldstein, supra, citing Pell v. Board of Educ. Union Free School Dist., supra).

The Supreme Court properly directed that the matter be remitted to the appellants for further review of the tenure application (see, New York Inst. of Technology v. State Div. of Human Rights, 40 N.Y.2d 316, 325-326, 386 N.Y.S.2d 685, 353 N.E.2d 598;  Matter of Bennett v. Wells College, 219 A.D.2d 352, 641 N.Y.S.2d 929;  Matter of Leibowitz v. State Univ. of N.Y., 85 A.D.2d 293, 295, 448 N.Y.S.2d 879).

MEMORANDUM BY THE COURT.