In this proceeding pursuant to CPLR Article 78, the petitioner seeks an order requiring respondent "to immediately reclassify [her] into an accepted tenure area without a loss of tenure time and to immediately reinstate her as a full time teacher in the [r]espondent school district" (notice of petition), to reinstate her benefits nunc pro tunc from the date of her dismissal, granting damages in [*2]the nature of lost salary and insurance payments and granting other relief. In its answer respondent denies allegations of the petition and asserts affirmative defenses (one of which has been withdrawn, specifically, lack of personal jurisdiction) as follows: that petitioner failed to comply with Education Law §3813 (first affirmative defense); that, in substance, the petitioner's initial appointment and subsequent grant of tenure were "an error and ultra vires" (answer, ¶16) and that the Court should decline jurisdiction based on the doctrine of primary jurisdiction, that is, defer to the Commissioner of Education of the State of New York; that, even if the petitioner is found to have tenure, her position was properly abolished under §3013 of the Education Law; that equitable estoppel is not applicable to municipalities except under limited circumstances not applicable herein; and that the petition herein is unverified.

The underlying facts herein are not in dispute. Petitioner applied for work in respondent school district by letter dated June 7, 2000, citing her experience as a computer teacher. On July 25, 2000, the petitioner was appointed as "DW/Probationary/Computer" (as reflected in minutes of appointment made that date, exhibit 2 to answer herein). On April 29, 2003, petitioner was granted tenure in the area of "computer" (as reflected in minutes of the Board dated April 29, 2003, exhibit 3 to answer herein). On January 13, 2009, the respondent abolished "the position of computer teacher held by Regina Moraitis . . . effective . . . January 16, 2009" (as reflected in Board minutes of the January 13, 2009 meeting, exhibit 4 to answer herein).

According to the affidavit of the respondent's Deputy Superintendent of Schools ("DS") sworn to March 11, 2009, offered in support of the answer, in 2007 the DS became "concerned with petitioner's classification" after reviewing district records. The DS reviewed the matter with the "[s]chool [a]ttorney", whose opinion was "that petitioner was not in a teaching position and was not entitled to tenure" (see ibid., at ¶5).

The respondent's contention relating to verification is without merit as the respondent failed to immediately with due diligence reject the pleading on such basis, that is respondent failed to treat it as a nullity and is thus deemed to have waived this objection (see, Lepkowski v. State, 1 NY3d 201 [2003]).

Nor is there merit to respondent's affirmative defense to the effect that a notice of claim is required in this context (see, Cowan v. Board of Education of Brentwood U.F.S.D., 99 AD2d 831 [2nd Dept., 1984). In any event, substantial compliance with the purposes of a notice of claim has been achieved through the pleading served herein with the time period required by law for service of such notice of claim (see, id.; Piaggone v. Board of Education, Floral Park - Bellrose, 92 AD2d 106 [2nd Dept., 1983]).

The doctrine of primary jurisdiction does not require that this Court defer to the Commissioner of Education in this case, where the gravamen of the claims is that the petitioner's termination was not in conformity with New York's tenure laws (see, Education Law §§2509(1)(a); 2509(2); 2503(3); see, also, Verdon v. Dutchess County Board of Cooperative Educational Services, [*3]47 AD3d 491 [2nd Dept., 2008]; Brunecz v. City of Dunkirk, 23 AD3d 1126 [4th Dept., 2005]).

Turning to the merits, the Court considers the January 13, 2009 action of respondent to have been violative of petitioner's rights as established by the statutory scheme instituted in this State which, the petitioner correctly notes, is to be read broadly in favor of the teacher (see, Speichler v. Board of Co-op. Educational Services, 90 NY2d 110 [1997]). Clearly, petitioner was granted tenure in the area of computers. Respondent's belated identification of its action as error and ultra vires (see answer ¶16) cannot serve to defeat rights which accrued to petitioner almost five years prior to respondent's action. Such a result would run afoul of the most basis purpose of the tenure scheme - to offer protection to one who has successfully negotiated the gauntlet of probationary status, such as petitioner herein.

The respondent's reference to efforts to compromise or settle the petitioner's claim based on her termination or to attempt to avert it prior to the resolution effecting it are entirely inappropriate (see, Richmond County Country Club v. Tax Com'n of City of New York, 53 AD3d 661 [2nd Dept., 2008]; CPLR §4547) in the context of this proceeding and the Court is discomfited by respondent's transparent effort to cast itself in a more favorable light, as part of its defense of this proceeding, by reference to conversations involving the DS, the school attorney and petitioner and her representative which entailed discussion of settlement based on what respondent and that time considered or intended to do. Respondent's remaining contentions are without merit.

Based on the foregoing, this Court grants the petition in all respects.

Settle judgment (see, 22 NYCRR §202.48).

So ordered.

Dated:, 2009

HON. WILLIAM B. REBOLINI, J.S.C.