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

Matter of David C. TAYLOR, Petitioner-Appellant, v. HAMMONDSPORT CENTRAL SCHOOL DISTRICT, Respondent-Respondent.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., LAWTON, WISNER, SCUDDER and BALIO, JJ. Harold G. Beyer, Albany, for petitioner-appellant. Matthew R. Fletcher, for respondent-respondent.

Petitioner, a high school science teacher, commenced this CPLR article 78 proceeding seeking judgment compelling respondent to restore him to his teaching assignment and compensating him for emotional distress he has endured as the result of respondent's action in assigning him to nonteaching duties.   The assignment to nonteaching duties was made following the completion of disciplinary proceedings conducted pursuant to Education Law § 3020-a.   Upon finding petitioner guilty of portions of two charges, the Hearing Officer imposed a $1,000 fine as a penalty.   No remedial action was imposed by the Hearing Officer (see, Education Law § 3020-a [4][a] ).   Petitioner contends that his assignment to nonteaching duties constitutes the imposition of a further penalty or remedial action in violation of Education Law § 3020-a.

 Supreme Court properly dismissed the petition on the ground that petitioner had no clear legal right to the relief sought against respondent, and thus that mandamus does not lie to compel respondent to restore petitioner to his teaching assignment (see, Matter of Card v. Siragusa, 214 A.D.2d 1022, 1023, 626 N.Y.S.2d 336).   Education Law § 3020-a neither limits the authority of respondent to assign petitioner to nonteaching duties nor requires respondent to restore petitioner to his teaching duties following the completion of disciplinary procedures conducted pursuant to the statute (see, Matter of Adlerstein v. Board of Educ., 64 N.Y.2d 90, 101-102, 485 N.Y.S.2d 1, 474 N.E.2d 209).

 The court erred, however, in rejecting respondent's further contention that the petition should be dismissed based on petitioner's failure to comply with the provisions of Education Law § 3813(1) (see, Matter of McClellan v. Alexander Cent. School Bd. of Educ., 201 A.D.2d 898, 898-899, 607 N.Y.S.2d 812).  “The notice of claim required under Education Law § 3813(1) is a statutory condition precedent to bringing an action or proceeding against a school district or a board of education (Matter of Board of Educ. v. Nyquist, 48 N.Y.2d 97, 421 N.Y.S.2d 853, 397 N.E.2d 365)” (Spedding v. Bowman, 152 A.D.2d 971, 972, 544 N.Y.S.2d 93).   Because petitioner seeks vindication of private rights, he is not exempt from the notice of claim requirement (see, Matter of McClellan v Alexander Cent. School Bd. of Educ., supra, at 899, 607 N.Y.S.2d 812;  Matter of Jackson v. Board of Educ., 194 A.D.2d 901, 903, 598 N.Y.S.2d 842, lv. denied 82 N.Y.2d 657, 604 N.Y.S.2d 47, 624 N.E.2d 177;  Sephton v. Board of Educ., 99 A.D.2d 509, 510, 470 N.Y.S.2d 681, lv. denied 62 N.Y.2d 605, 479 N.Y.S.2d 1026, 467 N.E.2d 895).

Judgment unanimously affirmed without costs.


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