It is hereby ordered that the judgment so appealed from is affirmed without costs.
Memorandum: Petitioner appeals from a judgment that granted respondents' motion to dismiss her petition, in which she alleged that she is entitled to tenured status as a teacher with respondent Pittsford Central School District (PCSD) and reinstatement as an employee. We affirm.
Petitioner was hired as a probationary fourth grade teacher with PCSD in September 2007, with the expectation that her probationary period would last for three years. At the end of her third probationary year, however, petitioner was informed that she would not be recommended to the Board of Education of PCSD (Board) for tenure. In lieu of termination, petitioner entered into a Juul agreement with PCSD (see Matter of Juul v Board of Educ. of Hempstead School Dist. No. 1, Hempstead, 76 A.D.2d 837, 838 , affd for reasons stated 55 N.Y.2d 648, 649 ), which granted her a fourth probationary year in exchange for the waiver of her right to a claim of tenure by estoppel. The Juul agreement was signed by petitioner, the Pittsford District Teacher's Association president, and respondent Mary Alice Price, the PCSD Superintendent (Superintendent). The agreement was neither presented to nor ratified by the Board. Toward the end of her fourth probationary year, petitioner was again informed by the Superintendent that she
We note at the outset that this is properly only a proceeding pursuant to CPLR article 78 rather than a hybrid declaratory judgment action/CPLR article 78 proceeding "inasmuch as petitioner does not `challenge the constitutionality of any statutes or regulations'" (Matter of Zehner v Board of Educ. of Jordan-Elbridge Cent. School Dist., 91 A.D.3d 1349, 1349 ). Thus, Supreme Court properly limited its determination to whether the PCSD's action to deny tenure was made in violation of lawful procedure, or was arbitrary and capricious or an abuse of discretion.
Although we agree with petitioner that a Juul agreement not approved by a school board is an impermissible abdication of a school board's responsibility to act as trustee (see Education Law § 1710) and manager (see § 1804 ) of the school district, we nevertheless agree with respondent that petitioner is equitably estopped from disaffirming the agreement despite the Board's failure to authorize or ratify it. "Equitable estoppel `is imposed by law in the interest of fairness to prevent the enforcement of rights which would work a fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party's words or conduct, has been misled into acting upon the belief that such enforcement would not be sought'" (Syracuse Orthopedic Specialists, P.C. v Hootnick, 42 A.D.3d 890, 893 , quoting Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184 , rearg denied 57 N.Y.2d 674 ). Although the applicability of equitable estoppel "`is ordinarily a question of fact for trial'" (id.), under these circumstances, the applicability of that doctrine can be resolved as a matter of law.
The Education Law requires that a superintendent make a recommendation to a board of education as to whether to appoint on tenure a teacher who reaches the expiration of his or her probationary term (see § 3012 ), and "the board of education may not grant tenure in the absence of a positive recommendation of the Superintendent" (Matter of Yanoff v Commissioner of Educ. of State of N.Y., 66 A.D.2d 919, 920 , lv
"`Parties cannot accept benefits under a contract fairly made and at the same time question its validity'" (R.A.C. Holding v City of Syracuse, 258 A.D.2d 877, 878 , quoting Svenska Taendsticks Fabrik Aktiebolaget v Bankers Trust Co., 268 N.Y. 73, 81 ). Inasmuch as the record establishes that the Juul agreement was fairly made, we conclude that petitioner is estopped from challenging its validity, including the waiver of her right to tenure by estoppel contained therein (see id.; see also Lordi v County of Nassau, 20 A.D.2d 658, 659-660 , affd 14 N.Y.2d 699 ; Kaminsky v Herrick, Feinstein LLP, 59 A.D.3d 1, 13 , lv denied 12 N.Y.3d 715 ).
We have reviewed the remaining contentions of the parties and conclude that they are without merit.
Fahey, J. (concurring).
I respectfully concur in the result reached by the majority, namely, the affirmance of the judgment granting respondents' motion to dismiss the petition. I agree with petitioner and the majority that a Juul agreement (see Matter of Juul v Board of Educ. of Hempstead School Dist. No. 1, Hempstead, 76 A.D.2d 837, 838 , affd for reasons stated 55 N.Y.2d 648, 649 ) not approved by a school board is an impermissible abdication of a school board's responsibility to act as trustee (see Education Law § 1710) and manager (see § 1804 ) of the school district. I write separately, however, because unlike the majority I conclude that a Juul agreement is an employment contract and should be characterized as such.
The agreement at issue here had a distant genesis in the agreement before the Second Department and the Court of Appeals in Juul. There, a teacher nearing the end of his probationary period was offered an additional year of probation by the school board in exchange for his agreement to waive his tenure rights (id. at 837). The teacher signed an agreement that, according to the record on appeal in Juul, was approved by the school board, and during the next school year the teacher was informed by the district superintendent of that administrator's intent to recommend that the teacher be denied tenure (id. at 837-838).
The teacher subsequently commenced a CPLR article 78 proceeding contending that the subject agreement was a nullity. The Second Department rejected that contention, concluding that "under certain circumstances a probationary teacher who is aware that a board of education intends to deny him tenure may validly waive his right to tenure and be employed for an additional year without acquiring tenure as a quid pro quo for reevaluation and reconsideration of the tenure determination at the end of the extra year" (id. at 838). The Second Department determined that, "in [those] circumstances, [the teacher's] open, knowing and voluntary waiver is valid and should be enforced" (id. [emphasis added]; see Matter of Feinerman v Board of Coop. Educ. Servs. of Nassau County, 48 N.Y.2d 491, 496-497  [holding that a probationary teacher may waive an expectation of tenure]), and the Court of Appeals subsequently affirmed for reasons stated at the Second Department (55 N.Y.2d 648 ).
Although the Education Law does not define an employment contract (see § 2), Education Law § 3011 (1) supports respondents' position that the Juul agreement is not an employment contract because it describes some of the terms of an employment
The fact remains that the obvious and direct effect of the agreement at issue was to secure and extend petitioner's employment with respondent Pittsford Central School District (PCSD), and I thus conclude that it is an employment contract that includes a waiver. As a practical matter, based on the intent of respondent Mary Alice Price, the PCSD superintendent (Superintendent), not to recommend petitioner for tenure at the end of petitioner's third probationary year, petitioner would have been terminated had she not signed the agreement at issue (see Matter of Yanoff v Commissioner of Educ. of State of N.Y., 66 A.D.2d 919, 920 , lv denied 47 N.Y.2d 711  ["(T)he board of education may not grant tenure in the absence of a positive recommendation of the Superintendent"]; see also Education Law § 3031).
Like the majority and as noted, I further conclude that a Juul agreement not approved by a school board is an impermissible abdication of a school board's responsibility to act as trustee (see Education Law § 1710) and manager (see § 1804 ) of the school district. It is beyond the power of a board of education to surrender those duties conferred upon it by the Education Law (see e.g. Board of Educ., Great Neck Union Free School Dist. v Areman, 41 N.Y.2d 527, 533  [recognizing that "a board of education has the right to inspect teacher personnel files and has no power to bargain away such right"]; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 N.Y.2d 774, 777  ["(T)he authority and responsibility vested in a school board under the several provisions of the Education Law to make tenure decisions cannot be relinquished"]), and contracting with and employing teachers is one of the powers of a board of education (see § 1709 ).
During a probationary period, a teacher is an at-will employee whose services may be terminated at any time (see Haviland v Yonkers Pub. Schools, 21 A.D.3d 527, 529 ). Pursuant to the Education Law, however, the termination of such an employee is contingent upon the recommendation of the superintendent
Put differently, when the three-year probationary period to which petitioner was entitled under Education Law § 3012 (1) (a) expired, the Superintendent, not the Board, made the decision to lengthen the probationary period and employ petitioner for a fourth year. I conclude that the administrative handling and approval of a Juul agreement is contrary to the Education Law's proviso that "[t]he ... board of education of every union free school district shall have power, and it shall be its duty ... [t]o contract with and employ such persons as by the provisions of this chapter are qualified teachers" (§ 1709 ). To hold otherwise would countenance the usurpation of the power of an elected body by the bureaucracy that it is intended to supervise.
Having concluded that the agreement at issue is an employment contract, I now turn to respondents' contention that petitioner is estopped from disaffirming it despite the Board's failure to authorize or ratify it. "`[T]he doctrine of equitable estoppel is to be invoked sparingly and only under exceptional circumstances'" (Townley v Emerson Elec. Co., 269 A.D.2d 753, 753-754 ), and "`[e]stoppel is ordinarily a question of fact