Opinion
Argued November 21, 1983
Decided December 13, 1983
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, CLIFFORD A. SCOTT, J.
Frederick A.O. Schwarz, Jr., Corporation Counsel ( Edward F.X. Hart and Leonard Koerner of counsel), for respondents.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
In cities having a population of 400,000 or more, the discretion to grant tenure to a principal upon completion of his or her probationary period lies exclusively in the superintendent of schools (see Matter of Caraballo v Community School Bd. Dist. 3, 49 N.Y.2d 488; Education Law, § 2573, subd 6). And, although the school board retains ultimate discretion over the termination of a principal during the probationary period (see Education Law, § 2573, subd 1, par [b]), that discretion may not be fairly read to extend beyond the end of the probationary period. To hold otherwise would constitute an arrogation of the superintendent's discretion over tenure decisions by the school board. Consequently, upon respondent's determination not to recommend petitioner for tenure and to terminate her services after completion of the probationary period, petitioner may not be deemed to have acquired tenure by the school board's inaction.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.