Opinion
March 28, 1988
Appeal from the Supreme Court, Kings County (Golden, J.).
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
The appellants correctly assert that the petitioner was not entitled to two years of credit toward his probationary period for the time he served as a per diem substitute teacher (see, Education Law § 2573 [a]), since he was not serving as a regular substitute (see, Dubin v. Macchiarola, 81 A.D.2d 630, affd 54 N.Y.2d 802; Matter of Ducey, 65 N.Y. St Dept Rep 65; Regulation of Chancellor, City School Dist of City of N.Y. No. C-510 [Feb. 12, 1985]). Since the petitioner's three-year probationary period (see, Education Law § 2573 [a]) did not expire before he was informed of the appellants' determination to terminate his service, he is not entitled to tenure by estoppel or acquiescence (see, Matter of Mugavin v. Nyquist, 48 A.D.2d 727, affd 39 N.Y.2d 1003; Matter of Pascal v. Board of Educ., 100 A.D.2d 622).
However, the petitioner, after receiving satisfactory ratings for more than three years of per diem substitute service and one year of full-time probationary service, was, upon recommendation of his supervisor and of the Superintendent, awarded a certificate of completion of probation on February 17, 1983. The granting of tenure at that time, although apparently done under the mistaken belief that he was entitled to credit toward his probationary period for the time he served as a per diem substitute, was not unauthorized, unlawful or against public policy (see, Matter of Roberts v. Community School Bd., 66 N.Y.2d 652; Matter of Weinbrown v. Board of Educ., 28 N.Y.2d 474; Central School Dist. No. 1 v. Three Vil. Teachers Assn., 39 A.D.2d 466; see also, Matter of Schlosser v. Board of Educ., 62 A.D.2d 207, affd 47 N.Y.2d 811; Matter of Moritz v. Board of Educ., 60 A.D.2d 161). Thus, the appellants may not disclaim that award of tenure (see, Matter of Moritz v. Board of Educ., supra), and must follow the procedures outlined in Education Law § 2573 (5) and § 3020-a before they may remove the petitioner from service. Lawrence, J.P., Rubin, Eiber and Harwood, JJ., concur.