Opinion
November 30, 1970
In a proceeding pursuant to article 78 of the CPLR to compel respondents to recommend and appoint petitioner Hoogerhyde to a tenured position as a music teacher, petitioners appeal from an order of the Supreme Court, Suffolk County, dated September 21, 1970, which denied the application and granted respondents' motion to dismiss the proceeding on the ground that petitioners do not have legal capacity to sue. Order affirmed, without costs. We agree with the Special Term's conclusion that the acceptance by respondents of petitioner Hoogerhyde's resignation barred this proceeding. In any event, the conceded failure of respondents to observe and evaluate a probationary teacher in accordance with the terms of the agreement with the petitioner teachers' association does not confer any rights with regard to tenure upon such a teacher (cf. Matter of Pinto v. Wynstra, 22 A.D.2d 914; Matter of Butler v. Allen, 29 A.D.2d 799; Matter of McMaster v. Owens, 275 App. Div. 506; Albaum v. Carey, 310 F. Supp. 594; Education Law, § 3012, subd. 2). Christ, P.J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.