IN RE: Vito Vincent PUCCIO (2026)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Department of Education dated June 27, 2022, which denied the petitioner certification of completion of probation and discontinued his probationary employment as a special education teacher, the petitioner appeals from a judgment of the Supreme Court, Kings County (Patria Frias–Colón, J.), dated July 3, 2024.  The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

The petitioner commenced probationary employment as a special education teacher with the Department of Education of the City of New York (hereinafter the DOE) in August 2018.  In the summer of 2021, the petitioner became the subject of an investigation into his use of excessive force in restraining a student.  On June 27, 2022, prior to the end of the petitioner's probationary period, the DOE denied the petitioner certification of completion of probation and terminated his employment, effective September 1, 2022.  In November 2022, the charges against the petitioner were sustained.  The petitioner commenced this proceeding pursuant to CPLR article 78 to review the DOE's June 27, 2022 determination, seeking reinstatement as a tenured teacher and an award of back pay and benefits.  In a judgment dated July 3, 2024, the Supreme Court denied the petition and dismissed the proceeding.  The petitioner appeals.

The Supreme Court properly determined that the petitioner did not acquire tenure by estoppel (see Matter of McManus v Board of Educ. of Hempstead Union Free School Dist., 87 NY2d 183, 187;  Matter of Brown v Board of Educ. of Mahopac Cent. Sch. Dist., 129 AD3d 1067, 1071) on the ground that he was continuously employed by the DOE for longer than the four-year probationary period (see Education Law § 2573[a][ii] ) as a result of his employment during the summers of 2019 and 2020.  This contention is without merit, as one “year” is the equivalent of a calendar year (see General Construction Law § 58;  O'Dea v School Dist. of City of Niagara Falls, 122 A.D.2d 553;  Matter of Grace v Board of Educ. of City of N.Y., 19 A.D.2d 637).  Accordingly, the petitioner's employment was terminated within the four-year probationary period, and he did not acquire tenure by estoppel.

The DOE's determination to deny the petitioner certification of completion of probation and terminate his employment was not arbitrary and capricious (see CPLR 7803[3];  Matter of Van Dunk v Orange–Ulster Bd. of Coop. Educ. Servs.  (BOCES), 219 AD3d 1434).  The DOE may deny tenure to a probationary teacher without a hearing and without stating any reasons for its action (see Matter of Bergstein v Board of Educ., Union Free School Dist. No. 1 of Towns of Ossining, New Castle & Yorktown, 34 NY2d 318, 322), absent a showing that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith (see Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765).  Here, the petitioner's conclusory and unsubstantiated assertions were not sufficient to meet his burden of showing that the DOE acted in bad faith or for illegal reasons (see Matter of Bergstein v Board of Educ., Union Free School Dist. No. 1 of Towns of Ossining, New Castle & Yorktown, 34 NY2d 318;  Matter of Muller v New York City Dept. of Educ., 142 AD3d 618, 620).

The petitioner furthermore failed to establish his entitlement to a name-clearing hearing (see Matter of Swinton v Safir, 93 NY2d 758, 764;  Matter of Murphy v City of New York, 35 AD3d 319;  Matter of Brathwaite v Manhattan Children's Psychiatric Ctr., 70 A.D.2d 810).

Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.

DILLON, J.P., WOOTEN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.