Skip to main content

IN RE: Lisa Capece (2014)

Reset A A Font size: Print

Supreme Court, Appellate Division, Second Department, New York.

IN RE: Lisa Capece, etc., respondent, v. Margaret Schultz, etc., et al., appellants.

2012–03257 (Index No. 80361/08)

Decided: May 28, 2014

THOMAS A. DICKERSON, J.P. JOHN M. LEVENTHAL L. PRISCILLA HALL PLUMMER E. LOTT, JJ. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Adam Coyller of counsel), for appellants. The Behrins Law Firm, PLLC, Staten Island, N.Y. (Jonathan B. Behrins of counsel), for respondent.

Argued—March 31, 2014


In a proceeding pursuant to CPLR article 78 to review a determination of Margaret Schultz, in her capacity as Community Superintendent of School District 31, and the New York City Department of Education, which discontinued the petitioner's probationary employment as a teacher at Public School 1, Margaret Schultz, Community School District 31, and the New York City Department of Education appeal from a judgment of the Supreme Court, Richmond County (Dollard, J.), dated February 10, 2012, which granted the petition, annulled the determination discontinuing the petitioner's probationary employment, and reinstated the petitioner to her position as a teacher at Public School 1, with retroactive seniority, back pay, benefits, and tenure effective as of January 25, 2009.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof granting the petitioner tenure as of January 25, 2009;  as so modified, the judgment is affirmed, without costs or disbursements.

A probationary employee may be discharged without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law (see Matter of Swinton v. Safir, 93 N.Y.2d 758, 762–763;  Matter of York v. McGuire, 63 N.Y.2d 760, 761;  Matter of Johnson v New York City Dept. of Educ., 73 AD3d 927, 927–928;  Matter of Sztabnik v. City of New York, 31 AD3d 456, 456;  Matter of Rivera v Department of Educ. City of N.Y., 25 AD3d 559, 559).   The petitioner bears the burden of presenting competent proof of the alleged bad faith, the violation of statutory or decisional law, or the constitutionally impermissible or illegal purpose (see Matter of Deitch v. City of New York, 90 AD3d 924, 925).   Here, the petitioner met her burden of demonstrating that the discontinuation of her probationary employment was made in bad faith, showing that the discontinuation followed a letter she wrote to the principal, in her capacity as a union chapter leader, requesting to make up her missed preparation periods.   Although, generally, evidence of unsatisfactory performance rebuts a showing of bad faith (see Matter of Johnson v. Katz, 68 N.Y.2d 649, 650;  Matter of Fichter v. Egan, 223 A.D.2d 516), in response to the petitioner's showing, the appellants failed to establish that the discontinuance of the petitioner's probationary employment was the result of poor performance.   The record demonstrates that the petitioner began to receive “Unsatisfactory” ratings only after she asked the principal to make up her missed preparation periods, and it was at that point that the evaluations of the petitioner's performance began to precipitously decline.   Accordingly, the Supreme Court properly annulled the determination and reinstated the petitioner to her former position, with retroactive seniority, backpay, and benefits (see Matter of Johnson v. City of New York, 34 AD3d 484).

However, the appellants correctly contend that the Supreme Court exceeded its authority by granting the petitioner tenure effective as of January 25, 2009.   “ ‘While the court is empowered to determine whether the administrative body acted arbitrarily, it may not usurp the administrative function by directing the agency to proceed in a specific manner, which is within the jurisdiction and discretion of the administrative body in the first instance’ ” (Lipsman v. New York City Bd. of Educ., 133 A.D.2d 810, 811, quoting Burke's Auto Body v. Ameruso, 113 A.D.2d 198, 200–201).   The grant of tenure is determined by a majority vote of the board of education following a probationary period of three years (see Education Law § 3012[1] ).   The probationary term must be completed before the employee can be considered for tenure (see Matter of Hazard v Board of Educ., Horseheads Cent. School Dist. No. 1, 16 A.D.2d 481).   Since the petitioner's probationary term had not expired when her probationary employment was discontinued as of July 25, 2008, she was not yet eligible for tenure at the time of her termination, and she did not seek such relief in her petition.   Accordingly, the Supreme Court erred in granting the petitioner tenure as of January 25, 2009.

The appellants' remaining contentions are either academic in light of our determination or without merit.



Aprilanne Agostino

Clerk of the Court

Was this helpful?

Thank you. Your response has been sent.

Copied to clipboard