See, e.g., Celestial Food Corp. of Coram, Inc. v. State Liquor Auth., 99 A.D.2d 25,27 n.*, 471 N.Y.S.2d 654, 656 n.* (2d Dept. 1984); Pasta Chef, Inc. v. State Liquor Auth., 54 A.D.2d 1112, 1112-13, 389 N.Y.S.2d 72, 73-74 (4th Dept. 1976), aff'd 44 N.Y.2d 766,406 N.Y.S.2d 36 (1978); Rochester Colony, Inc. v. Hostetter, 19 A.D.2d 250, 252-53, 241 N.Y.S.2d 210, 213 (4th Dept. 1963).Pell v. Board of Ed., 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 839 (1974) (in part quoting Colton v. Berman, 21 N.Y.2d 322, 329,287 N.Y.S.2d 647, 650-51 (1967)); accord, e.g., Lyons v. Whitehead, 291 A.D.2d 497, 198-99, 738 N.Y.S.2d 671, 673 (2d Dept. 2002). The harder question is whether, based on facts that reasonably might be found by a jury, the issuance of the Emergency Declaration was more than arbitrary and capricious — i.e., whether the basis for the decision was so unsound that the decision was "so outrageously arbitrary as to constitute a gross abuse of governmental authority."
See, e.g., Celestial Food Corp. of Coram, Inc. v. State Liquor Auth., 99 A.D.2d 25, 27 n.*, 471 N.Y.S.2d 654, 656 n.* (2d Dept. 1984); Pasta Chef, Inc. v. State Liquor Auth., 54 A.D.2d 1112, 1112-13, 389 N.Y.S.2d 72, 73-74 (4th Dept. 1976), aff'd 44 N.Y.2d 766,406 N.Y.S.2d 36 (1978); Rochester Colony, Inc. v. Hostetter, 19 A.D.2d 250, 252-53, 241 N.Y.S.2d 210, 213 (4th Dept. 1963).Pell v. Board of Ed., 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 839 (1974) (in part quoting Colton v. Berman, 21 N.Y.2d 322, 329, 287 N.Y.S.2d 647, 650-51 (1967)); accord, e.g., Lyons v. Whitehead, 291 A.D.2d 497, 498-99, 738 N.Y.S.2d 671, 673 (2d Dept. 2002). The harder question is whether, based on facts that reasonably might be found by a jury, the issuance of the Emergency Declaration was more than arbitrary and capricious — i.e., whether the basis for the decision was so unsound that the decision was "so outrageously arbitrary as to constitute a gross abuse of governmental authority."
Contrary to the Supreme Court's determination, the determination dated November 25, 2008, implicitly reconsidered, adopted, and then repromulgated the findings of the determination dated August 2, 2007, inter alia, denying the Petitioner's PAR. Under these circumstances, the issues raised by the petitioner relating to the Petitioner's PAR were raised in the underlying administrative proceeding and, thus, are properly brought up for review in this CPLR article 78 proceeding. Therefore, those issues should have been considered and determined by the Supreme Court on this petition ( see Matter of Lyons v Whitehead, 291 AD2d 497). Accordingly, we remit the matter to the Supreme Court, Nassau County, to hear and determine on the merits the issues raised by the petitioner relating to the Petitioner's PAR, and thereafter to enter an appropriate amended judgment.
Ordered that the order is affirmed insofar as appealed from, with costs. "Because [a] [s]ettlement [a]greement is a contract between the parties, it must be construed according to ordinary contract law" ( Matter of Lyons v Whitehead, 291 AD2d 497, 499). The court must "determine the intention of the parties as derived from the language employed in the contract, [and it] should strive to give a fair and reasonable meaning to the language used" ( Abiele Contr. v New York City School Constr. Auth., 91 NY2d 1, 9-10; see Lyons v Whitehead, supra at 499).
n of the expressions of the parties to the end that there be a `realization of [their] reasonable expectations'" ( Brown Bros. Elec. Contrs. v. Beam Constr. Corp., 41 N.Y.2d 397, 400, quoting 1 Corbin, Contracts, § 1). The Supreme Court properly determined that in reviewing and interpreting the plain language contained within the four corners of the agreement, Article X, section C of the agreement, when read in conjunction with Article II, section G of the agreement, clearly and unambiguously permitted the respondent Patchogue-Medford School District (hereinafter the School District) to involuntarily transfer the petitioner Ronald Hughes from his daytime position as a custodian at the Patchogue-Medford High School to the night shift at the School District's elementary school due to an altercation with a student at the high school. Furthermore, the School District's determination to transfer Hughes was not arbitrary and capricious ( see Matter of Pell v. Board of Educ., 34 N.Y.2d 222; Matter of Lyons v. Whitehead, 291 A.D.2d 497). PRUDENTI, P.J., S. MILLER, H. MILLER and ADAMS, JJ., concur.
The petitioner Carol Lyons (hereinafter the petitioner) was employed as a Developmental Aide at Letchworth Developmental Disabilities Service of the State of New York (hereinafter Letchworth). In February 1999 she and her employer, James J. Whitehead, the Director of Letchworth, entered into an agreement settling a disciplinary proceeding filed against her (hereinafter the Settlement Agreement). Pursuant to the Settlement Agreement, the petitioner, inter alia, was placed on "general probation status" for a period of one year, and her employment could be terminated for a violation of her probation "except for time and attendance infractions" ( Matter of Lyons v. Whitehead, 291 A.D.2d 497, 498). In March 1999 the petitioner was scheduled to attend, but did not attend, a "medication course."
We affirm. Contrary to the contention of the petitioner, there is a rational basis in the record which supports the determination of the Chief of Police that the petitioner's absence from August 2000 through April 2001 was not related to his prior accident in December 1998. Accordingly, the determination to deny benefits was not arbitrary and capricious (see Matter of Pell v. Board of Educ., 34 N.Y.2d 222; Matter of Bigger v. County of Orange, 293 A.D.2d 746; Matter of School of Language and Communication Dev. v. Long Is. Power Auth., 283 A.D.2d 506: cf. Matter of Lyons v. Whitehead, 291 A.D.2d 497). The petitioner's remaining contentions are either improperly raised for the first time on appeal or without merit.
Moreover, "[a] settlement agreement is a contract between the parties, it must be construed according to ordinary contract law." Lyons v Whitehead, 291 AD2d 497, 499 (2d Dept 2002).