Consedine v. Portville Cent. School Dist.

Full title: JOHN R. CONSEDINE, Plaintiff, v. PORTVILLE CENTRAL SCHOOL DISTRICT…

Court: Supreme Court of the State of New York, Cattaraugus County

Date published: Apr 25, 2005

2005 N.Y. Slip Op. 50628 (N.Y. Sup. Ct. 2005)

Opinion

68617

Decided April 25, 2005.

ROBERT E. SMITH, ESQ., Latham, New York, for the Plaintiff.

MELISSA FINGAR, ESQ., Pittsford, New York, for the Defendants.

LARRY M. HIMELEIN, J.

On September 17, 2002, the board of education for the Portville School District created a new position of K-12 assistant principal. The board minutes for November 19, 2002 reflect the appointment of plaintiff John Consedine to the position "for a probationary period of three (3) years, to commence on January 1, 2003 and end on January 1, 2006." Defendant Stephen Day, then the superintendent of the school district, claims he told plaintiff that the position was "iffy" because of the school district's tenuous financial situation; plaintiff "categorically" denies that claim. An employment contract between the parties was executed on December 12, 2002.

Plaintiff began work as the assistant principal on January 1, 2003. On April 28, 2003, the school board voted to cut defendant's position. Mr. Day informed plaintiff of that on April 30, 2003 and also informed him that a teaching position was open and encouraged plaintiff to apply for it. Plaintiff did so and claims that he was recommended for the position but it was not offered to him. On July 8, 2003, the residents of the school district voted down the proposed budget. On July 10, 2003, the board adopted a contingency budget which also eliminated plaintiff's position and Mr. Day wrote to plaintiff explaining that plaintiff's job had been eliminated and he would not be working for the district in the fall.

Plaintiff served a notice of claim on July 29, 2003 and served a complaint alleging breach of contract in April 2004. In July 2004, defendants moved to dismiss but the court denied the motion because defendants did not include a copy of the complaint with their motion. Defendants have now refiled the motion with the appropriate pleadings attached.

Education Law § 3012 (1) (b) provides that principals and administrators are appointed for a probationary period of three years. The statute also permits the termination of that employment at any time during the probationary period. Plaintiff, however, contends that he has a binding three year contract; defendants allege that plaintiff's "employment agreement" does not guarantee employment for three years but only sets forth the terms of plaintiff's probationary employment and, notwithstanding the contract, plaintiff can be terminated at any time.

Without a contract, plaintiff would clearly have no remedy for his dismissal at any time during the probationary period ( see Connor v. Board of Education of the Bayport — Blue Point Union Free School District, 184 AD2d 698, 587 NYS2d 181 [2nd Dept. 1992]). However, in Flanagan v. Board of Education, Commack Union Free School District ( 47 NY2d 613, 419 NYS2d 917), the Court of Appeals found nothing in the state constitution, any statute, or public policy, that prohibited a school district from giving a principal the benefit of a three year contract which could not be terminated without cause until the three years had passed.

Similarly, in Averback v. Board of Education of the New Paltz Central School District ( 147 AD2d 152, 541 NYS2d 655 [3rd Dept. 1989], app. denied 74 NY2d 611, 546 NYS2d 555), the court found it "fundamental" that a board of education can contract away its right to discharge an assistant superintendent before the end of the probationary period ( see also Cohoes City School District v. Cohoes Teachers Association, 40 NY2d 774, 390 NYS2d 53); Candor Central School District v. Candor Teachers Association, 42 NY2d 266, 397 NYS2d 737; Carle Place Board of Education v. Carle Place Teachers Association, 63 AD2d 714, 405 NYS2d 118 [2nd Dept. 1978]; Richter v. Board of Education, Union Free School District No. 26, 71 Misc 2d 571, 336 NYS2d 330 [S.Ct. Nassau Co. 1972]).

It is also well settled that a contract should be enforced according to its terms ( Smith Road Associates, LLC v. IBM Corp., ___ NY2d ___, 2005 WL 705966; Vermont Teddy Bear Co., Inc. v. 538 Madison Realty Co., 1 NY3d 470, 775 NYS2d 765). When the language in a contract is "clear and unambiguous", a court must look at the contract itself and not turn to extrinsic evidence ( South Road Associates, LLC v. IBM Corp., ___ NY2d ___, 2005 WL 705966; Van Buren v. Van Buren, 252 AD2d 950, 675 NYS2d 739 [4th Dept. 1998]). It appears to the court that this contract provided plaintiff a full three years of employment; at the very least, defendants are not entitled to a dismissal as a matter of law ( see TSR Consulting Services, Inc. v. Steinhouse, 267 AD2d 25, 699 NYS2d 375 [1st Dept. 1999]).

Defendants next contend that, even if the court finds a valid employment contract, it is unenforceable because it was not ratified by the board of education, notwithstanding that it was signed by plaintiff, the board president and the school superintendent. It is impossible to ascertain from the submissions whether that claim is true or false. The board resolution was to appoint plaintiff to the position "for a probationary period of three (3) years to commence on January 1, 2003 and end on January 6, 2006". The court cannot conclude as a matter of law that Mr. Day was not authorized to sign plaintiff to a binding three year contract. Moreover, as a factual matter, the board might have wanted to extend plaintiff a three year contract in return for plaintiff giving up a tenured position. Further, principles of estoppel or implied authority might apply to these facts. Thus, this issue cannot be determined on a motion to dismiss.

Defendants also contend that a board of education cannot bind successor boards with a contract like the one at issue here. Again, however, estoppel principles may apply to this claim. Further, if courts have held that a board can contract or bargain away the right to fire an assistant principal or teacher during the probationary term ( see Averback, 174 AD2d 152, 541 NYS2d 655 [3rd Dept. 1989], app. denied 74 NY2d 611, 546 NYS2d 555; Cohoes, 40 NY2d 774, 390 NYS2d 53; Candor, 42 NY2d 266, 397 NYS2d 737), that same contract will also prevent future boards from doing so. Indeed, the Third Department rejected this very contention in Averback, noting that future boards can discharge for cause during the contract term or without cause when the contract expires.

For all the above reasons, the motion to dismiss is denied. Submit order on notice.