Smolen v. Board of Education , 757 N.Y.S.2d 888 ( 2003 )

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Board of Education of the City School District of New York, dated September 13, 2000, terminating the petitioner’s employment as a probationary teacher, the appeal is from a judgment of the Supreme Court, Kings County (Bernstein, J.), dated November 26, 2001, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The petitioner failed to demonstrate that his probationary term commenced prior to the date of his formal appointment (see Melnick v Board of Educ., 104 AD2d 943 [1984]; cf. Ricca v Board of Educ., 47 NY2d 385 [1979]). Thus, the petitioner could not have acquired tenure by estoppel at the time of his dismissal and was subject to the termination of his employment without a hearing.

The petitioner’s remaining contentions either are unpreserved for appellate review or without merit. Altman, J.P., Smith, McGinity and Cozier, JJ., concur.