IN RE: Lynn COSTELLO

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

IN RE: Lynn COSTELLO, etc., et al., Respondents, v. BOARD OF EDUCATION OF the EAST ISLIP UNION FREE SCHOOL DISTRICT, Appellant.

Decided: May 26, 1998

Before ROSENBLATT, J.P., and MILLER, THOMPSON and SANTUCCI, JJ. Ingerman Smith, LLP, Northport (John H. Gross and Neil M. Block, of counsel), for appellant. James R. Sandner, New York City (Stuart I. Lipkind, Noel D. Cohen, Claude I. Hersh, and Melinda G. Gordon, of counsel), for respondents. Jay Worona, and Kate Gaffney, Albany, for New York State School Boards Association, Inc., amicus curiae.

In a proceeding pursuant to CPLR article 78, inter alia, to annul a resolution of the Board of Education of the East Islip Union Free School District dated July 3, 1996, and to enjoin it from requiring prospective teachers to execute waivers of their tenure rights as a condition of obtaining employment, the appeal is from a judgment of the Supreme Court, Nassau County (Kohn, J.), dated May 20, 1997, which granted the petition.

ORDERED that the judgment is affirmed, with costs to the respondents.

The appellant Board of Education of the East Islip Union Free School District (hereinafter the Board) correctly contends that a teacher's rights with respect to tenure are waivable when the waiver is freely, knowingly, and openly arrived at without the taint of coercion or duress (see, Matter of Feinerman v. Board of Coop. Educational Servs. of Nassau County, 48 N.Y.2d 491, 423 N.Y.S.2d 867, 399 N.E.2d 899;  Matter of Abramovich v. Board of Educ. of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 N.Y.2d 450, 414 N.Y.S.2d 109, 386 N.E.2d 1077, cert. denied 444 U.S. 845, 100 S.Ct. 89, 62 L.Ed.2d 58;  Matter of Moore v. Board of Educ., Smithtown Cent. School Dist., 116 A.D.2d 273, 500 N.Y.S.2d 710).   This does not, however, give the Board the authority to eliminate the tenure system altogether.

The tenure system is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom and to protect competent teachers from the threat of arbitrary dismissal (see, Ricca v. Board of Educ. of City School Dist. of City of N.Y., 47 N.Y.2d 385, 418 N.Y.S.2d 345, 391 N.E.2d 1322).   The system proposed by the Board, i.e., tenure by contract terminating automatically at the expiration of the contract, is the very system sought to be eliminated by the enactment of the tenure statutes of the Education Law and the change to a system of permanence (see, Education Law § 3012;  Matter of Carter v. Kalamejski, 255 App.Div. 694, 8 N.Y.S.2d 926, affd. 280 N.Y. 803, 21 N.E.2d 692).   Accordingly, the resolution implementing this system was improper and the petition was properly granted.

In light of the foregoing determination, the Board's remaining contentions need not be addressed.

MEMORANDUM BY THE COURT.

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