Opinion
July 10, 1967
Judgment of the Supreme Court, Suffolk County, dated September 21, 1966, reversed on the law and the facts, without costs, and proceeding remanded for trial pursuant to CPLR 7804 (subd. [h]). Issues are raised in this article 78 proceeding which should not be decided on affidavits. The knowledge and understanding of the petitioner of the status of her probationary appointment as elementary school principal and assistant principal during her sabbatical leave are relevant and material to the issue of whether she can claim tenure by acquiescence and estoppel ( Matter of Becker v. Board of Educ., 9 N.Y.2d 111). Also relevant, on the issue of whether the service performed during sabbatical leave can be deemed service in the position of elementary school principal and assistant principal, is the exact nature of the services and duties performed during such leave, along with the graduate studies pursued by the petitioner and approved by the Board of Education. These factual matters should be determined after a trial. Ughetta, Acting P.J., Brennan, Rabin and Nolan, JJ., concur; Christ, J., dissents solely as to the remission with respect to the assistant principalship, as to which he would hold that petitioner had tenure. [ 51 Misc.2d 474.]