There is no statutory remedy for violation of the notice requirements of Education Law ยง 3019-a. Rather, the provision for payment to a probationary teacher based upon inadequate notice was created by the courts ( see Matter of Zunic v Nyquist, 48 AD2d 378, 380, affd 40 NY2d 962). We have indicated that Education Law ยง 3019-a is intended to "provide[] a mechanism which insures a teacher actual notice of the termination so that he [or she] may seek other means of support" ( Matter of Zunic v Nyquist, 48 AD2d at 380), and we have described the payment as "nothing more than transitional aid" ( id.).
Similarly, where a probationary teacher is not recommended for tenure, the superintendent must issue written notice of that decision no later than 60 days before the probationary period expires ( see Education Law ยง 2573 [a]). The purpose underlying these notice provisions is to allow teachers whose services are to be discontinued a period of time to seek other employment ( see Matter of Zunic v Nyquist, 48 AD2d 378, 380 [3d Dept 1975], affd on op below 40 NY2d 962). Although the 30-day and 60-day notice statutes do not specify a remedy in the event of noncompliance, we determined in Matter of Tucker v Board of Educ., Community School Dist. No. 10 ( 82 NY2d 274), an Education Law ยง 2573 (1) (a) case, that teachers are entitled to "one day's pay for each day the notice was late" ( id. at 278). Education Law ยง 3019-a correspondingly obligates probationary teachers to provide at least 30 days' written notice prior to leaving their positions.
The statutes do not specify a remedy for violation of the notice requirements (see, Matter of Brida, 11 Ed Dept Rep 76, 77, affd 69 Misc.2d 900 [Sup Ct, Albany County]; Matter of McDaniel, 12 Ed Dept Rep 182, 183). The courts and the State Commissioner of Education, however, have consistently held that teachers are awarded one day's pay for each day the notice was late (see, e.g., Matter of Zunic v Nyquist, 48 A.D.2d 378, 380, affd 40 N.Y.2d 962; Ricca v Board of Educ., 62 A.D.2d 987, 988, revd on other grounds 47 N.Y.2d 385; Matter of Pascal v Board of Educ., 100 A.D.2d 622, 624; Matter of Lehman v Board of Educ., 82 A.D.2d 832, 834; Matter of Gordon, 24 Ed Dept Rep 277, 279; Matter of Rossi, 15 Ed Dept Rep 363, 365; Matter of Brown, 12 Ed Dept Rep 109, 110; Matter of Bourke, 12 Ed Dept Rep 261, 263; Matter of Slater, 12 Ed Dept Rep 275, 277). The foregoing decisions concern cases where the school board's failure to provide the required notice was intentional or due to an oversight.
And, it is also a fact that this restrictive language, seemingly bespeaking an unchallengeable power, continued to remain part of the statute until October 26, 1976 (L 1976, ch 857, ยง 1), when it was withdrawn, specifically to broaden the scope of judicial review (see Matter of Ward v Nyquist, 43 N.Y.2d 57, 61; Governor's Memorandum of Approval, NY Legis Ann, 1976, p 407). But, even without the change wrought by the statutory amendment, our courts have not hesitated to exercise a reviewing function when, in their opinion, the commissioner had erroneously decided issues involving statutes and questions of law, on the theory that determinations so flawed fell within the rubric of arbitrariness (Matter of Mugavin v Nyquist, 48 A.D.2d 727, 728, affd 39 N.Y.2d 1003; see Matter of Ross v Wilson, 308 N.Y. 605, 615-617; Matter of Zunic v Nyquist, 48 A.D.2d 378, 380, affd 40 N.Y.2d 962). Thus, as the courts below recognized, judicial scrutiny was here proper.
This failure to give timely notice, however, would not appear to taint fatally petitioner's dismissal. (See Matter of Zunic v Nyquist, 48 A.D.2d 378, affd 40 N.Y.2d 962.)
Frank C. Shaw for respondent. Order affirmed, with costs, on the opinion by then Presiding Justice J. CLARENCE HERLIHY at the Appellate Division ( 48 A.D.2d 378). Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE.
We affirm. We previously have held that in instances where the procedural requirements of Education Law ยง 3031 have not been complied with and where, as here, there is no showing that substantive rights have been violated in the dismissal of a probationary teacher, it is improper to reinstate such teacher nunc pro tunc because of such procedural defect ( see Matter of Zunic v. Nyquist, 48 AD2d 378, 380, affd 40 NY2d 962; Matter of Rathbone v. Board of Educ. of Hamilton Cent. School Dist., 47 AD2d 172, 176, affd 41 NY2d 825). Accordingly, the arbitrator's decision is, among other things, wholly irrational ( see Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO [ State of New York], 15 AD3d 748, 750).
The appellants contend that this proceeding is untimely. Since this is not a proceeding to review the reasons for the petitioner's discharge, the four-month Statute of Limitations which runs from the stated effective date of discharge (see, CPLR 217; see also, Matter of Rappo v. City of N.Y. Human Resources Admin., 120 A.D.2d 339) does not bar the petitioner's claim (cf., Matter of Zunic v. Nyquist, 48 A.D.2d 378, affd 40 N.Y.2d 962). The respondents characterize this proceeding as one in the nature of mandamus to compel, for which no notice of claim is required (see, Education Law ยง 3813; Matter of Piaggone v Board of Educ., 92 A.D.2d 106, 108).
We reject petitioner's argument that she was not examined in accordance with what formerly was section 41 (subd 3, par [e]), of the by-laws of the Board of Education of the City of New York (see Matter of Baylis v Board of Educ., 80 A.D.2d 610). Moreover, it appears that the respondents sufficiently complied with the by-law provisions governing the conduct of review proceedings. In view of the fact that we are remitting this matter to the respondents, we need not reach the question of the effect of the board's failure to comply with the notice requirements of section 2573 (subd 1, par [a]) of the Education Law. However, we note that in the event it is ultimately determined that the petitioner's services are to be discontinued, then she would be entitled to one day's pay for each day that the notice was late (see Matter of Zunic v Nyquist, 48 A.D.2d 378, affd 40 N.Y.2d 962). Lastly, we note that the letter dated January 25, 1978, by which the petitioner was informed that her employment was being discontinued, also provided that her teaching license was to be discontinued. Respondents candidly concede that this statement was erroneous. A board of education may not terminate a teaching license without first holding a hearing at which proper procedural safeguards are employed (see Matter of Baronat, 11 Educ Dept Rep 150).
As such, his service in the position, regardless of its duration, did not entitle him to tenure under section 2573 Educ. of the Education Law" (see Matter of Markon v Ambach, 58 A.D.2d 666, 667). Petitioner herein was, however, deprived of the full 60 days' notice which he was entitled to receive prior to his termination, pursuant to section 2573 (subd 1, par [a]) of the Education Law; he was given only 55 days' notice. As the purpose of the notice provision "is one of fairness and to accord probationary teachers a reasonable period of time, prior to expiration of their probationary period, to enable them to make appropriate plans for the forthcoming school term" (Pavilion Cent. School Dist. v Pavilion Faculty Assn., 51 A.D.2d 119, 123), the petitioner is entitled to five days' pay, with interest thereon, from the date of the termination of his services (see Matter of Zunic v Nyquist, 48 A.D.2d 378, affd 40 N.Y.2d 962). Hopkins, J.P., Martuscello, Rabin and Hawkins, JJ., concur.