
    In the Matter of Ronald D. Nash, Appellant, v Board of Education, Union Free School District No. 13, Town of Islip, Respondent.
    Argued January 16, 1976;
    decided February 19, 1976
    
      Ivor R. Moskowitz and Bernard F. Ashe for appellant.
    I. Appellant acquired tenure on May 1, 1971 in accordance with the terms of the collective bargaining agreement between the CITA and respondent Board of Education. (Board of Educ. of Union Free School Dist. No. 3 v Associated Teachers of Huntington, 30 NY2d 122; Syracuse Teachers Assn. v Board of Educ., Syracuse City School Dist., 35 NY2d 743; Matter of Associated Teachers of Huntington v Board of Educ., Union Free School Dist. No. 3, 33 NY2d 229; Matter of Weinbrown v Board of Educ. Union Free School Dist. No. 15, 28 NY2d 474; Matter of Nyboe v Allen, 10 Misc 2d 895, 7 AD2d 822; Matter of Mulholland v Board of Educ. of Yorktown Cent. School Dist. No. 2, 70 Misc 2d 852, 41 AD2d 704; Board of Educ., Cent. School Dist. No. 1 v Byram Hills Teachers’ Assn., 74 Misc 2d 621, 43 AD2d 1020; Matter of Board of Educ., Cent. School Dist. v Harrison Assn. of Teachers, 46 AD2d 674.) II. Chapters 116 and 1102 of the Laws of 1971 and chapter 953 of the Laws of 1972 did not act to affect appellant’s right to tenure. (Matter of Deutsch v Catherwood, 31 NY2d 487; Matter of Union Free School Dist. No. 2 v Nyquist, 41 AD2d 1003, 33 NY2d 517; Matter of McCarthy v Board of Educ. of Union Free School Dist. No. 3, 73 Misc 2d 225, 43 AD2d 815; Matter of Weinbrown v Board of Educ. of Union Free School Dist. No. 15, Town of Hempstead, 28 NY2d 474.) III. Respondent Board of Education failed to give the proper notice required under article XVII of the contract. IV. Section 3813 of the Education Law does not apply to the case at bar. (Ruocco v Doyle, 38 AD2d 132; Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 43 AD2d 749, 35 NY2d 371; Matter of Board of Educ. of Cent. School Dist. No. 1 [Minstein Constr. Co.], 12 AD2d 40.)
    
      William R. Garbarino and Hugh J. Leitch for respondent.
    I. Appellant did not acquire tenure as of May 1, 1971. (Neuhaus v Long Is. R. R. Co., 30 AD2d 825; City of Troy Unit of Rensselaer County Chapter of Civ. Serv. Employees Assn. v City of Troy, 36 AD2d 145, 30 NY2d 549; Matter of Grace v Board of Educ. of City of N. Y., 19 AD2d 637; Matter of Anderson v Board of Educ. of City of Yonkers, 46 AD2d 3.60; Matter of McCarthy v Board of Educ. of Union Free School Dist. No. 3, 73 Misc 2d 225, 43 AD2d 815; Matter of Gunthorpe v Board of Educ. of Union Free School Dist. No. 5, 41 Misc 2d 757; Matter of Mulholland v Board of Educ. of Yorktown Cent. School Dist. No. 2, 70 Misc 2d 852, 41 AD2d 704; Matter of Hazard v Board of Educ., Horseheads Cent. School Dist. No. 1, 16 AD2d 481; Matter of Brida v Ambach, 69 Misc 2d 900; Matter of Weinbrown v Board of Educ. of 
      
      Union Free School Dist. No. 15, Town of Hempstead, 28 NY2d 474.) II. In light to the subsequent amendments to the Education Law which extended appellant’s probationary term, appellant was given proper notice of denial of tenure. (Board of Regents v Roth, 408 US 564; Phelps v Board of Educ., 300 US 319; Dodge v Board of Educ., 302 US 74; Russell v Hodges, 470 F2d 212; Canty v Board of Educ. of City of N. Y., 470 F2d 1111; Lanza v Wagner, 11 NY2d 317; Matter of Board of Educ. of City of Albany v State Div. of Human Rights, 38 AD2d 657, 30 NY2d 925; Matter of Baronoff v Board of Educ., Union Free School Dist. No. 18, 72 Misc 2d 959; Matter of Central School Dist. No. 1 [Mahopac Teachers Assn.], 72 Misc 2d 503.) III. The proceeding by appellant should be dismissed by reason of his failure to comply with section 3813 of the Education Law. (Union School Dist. No. 6 v New York State Human Rights Appeal Bd., 43 AD2d 749, 35 NY2d 371; Ruocco v Doyle, 38 AD2d 132; Board of Educ. of Cent. School Dist. No. 1 [Minstein Constr. Co.], 12 AD2d 40; Scherman v Board of Educ. of School Dist. No. 1, 44 AD2d 831.)
   Memorandum. Order of the Appellate Division affirmed, without costs. By statute enacted April 9, 1971, effective May 9, 1971, the statutory probationary term for secondary school teachers, among others, was extended from three to five years (Education Law, § 3012, subd 1, as amd by L 1971, ch 116, § 1). Although the school board had previously decided to deny petitioner tenure, the new statute caused the board to withhold its decision, in order to evaluate further petitioner’s performance. Consequently, the board did not give petitioner notice of denial of tenure by May 1 of his "third year” (1971), the limiting date fixed by the collective agreement between the Central Islip Teachers’ Association and the school board. Instead, the school superintendent sent petitioner a letter dated April 28, 1971, notifying him of the extension of his probationary term and that no recommendation with respect to tenure would be currently appropriate. His principal later told him that he was being retained without tenure for further evaluation, and that otherwise tenure would have been denied. Petitioner, for obvious reasons, did not object to this arrangement.

On July 1, 1971, the Legislature suspended the effective date of the five-year extension statute until October 1, 1971 (L 1971, ch 1102). Thus, teachers, such as petitioner, whose probationary terms would expire on September 1, 1971, would, under the old statute, acquire tenure by acquiescence on that date. Faced with this dilemma, with respect to petitioner, on July 26, 1971 the board decided to deny tenure and terminate his employment. Petitioner was so notified by letter dated July 27, 1971. Of course, the May 1 deadline for the notice required by the collective agreement had since passed.

An agreement must be construed according to the intent of the parties (see, e.g., Madawick Contr. Co. v Travelers Ins. Co., 307 NY 111, 119; 10 NY Jur, Contracts, § 192, and cases cited). In the instant case, the collective agreement makes plain that the parties contemplated a three-year statutory probationary period: the parties agreed that notice of denial of tenure must be given "by May 1st of [a probationary teacher’s] third year”.

The action of the Legislature on April 9, 1971 in extending the statutory probationary term from three to five years, altered a material circumstance assumed to exist by both parties at the time of the agreement, namely, that the "third year” of probation would be the last year. In view of this development, the board was relieved of its obligation under the agreement to notify petitioner of denial of tenure by May 1 of petitioner’s "third year”. This is because the giving of notice by that date, although not literally impossible, would have been frustrative of the notice provisions of the collective agreement and of the statutory purpose in extending petitioner’s probation, and thus contrary to his benefit (see Marks Realty Co. v Hotel Hermitage Co., 170 App Div 484, 485; Restatement, 2d, Contracts [TD No. 9, 1974], Intro Note to Ch 11, at pp 42-43, §§ 285, 289; cf. Buffalo & Lancaster Land Co. v Bellevue Land & Improvement Co., 165 NY 247, 253-254; Stewart v Stone, 127 NY 500, 507; 6 Williston, Contracts [rev ed], §§ 1954, 1957; 10 NY Jur, Contracts, §§359, 373). Indeed, upon being told of the extension of his probationary term, petitioner voiced no objection, as he hardly would in the light of the imminent determination to deny him tenure.

The board was not, however, relieved of its obligation to give petitioner notice at the first available opportunity. With the later passage of another statutory change, effective July 2, 1971, in the probationary term, which had the effect of reverting petitioner to three-year probationary status, the board was obliged to give notice at the earliest available opportunity. This it did by termination letter, dated July 27.

A still later statute reconstituted petitioner’s probationary term from three to almost four years (L 1972, ch 953, § 5). However, notice of termination had been given long before the new expiration date of petitioner’s probationary term. Thus, petitioner’s employment had been properly terminated by the board on July 27, 1971.

Chief Judge Breitel and Judges Jasen, Jones and Fuchs-berg concur in memorandum; Judges Gabrielli, Wachtler and Cooke dissent and vote to reverse on the dissenting memorandum by Mr. Justice Fred J. Munder at the Appellate Division (46 AD2d 901).

Order affirmed.  