Decision No. 12,827

(October 27, 1992)

SOBOL, Commissioner.--Petitioner, the former superintendent of schools of the Wappingers Central School District, appeals from the board's ("respondent") decision to hire a new superintendent and not renew petitioner's contract. The appeal must be dismissed.

Petitioner was employed as respondent's superintendent effective March 1, 1987. The original employment contract was renewed twice, running from March 1, 1989 through June 30, 1992. Paragraph 1(b) of the contract provides:

On December 26, 1989, respondent notified petitioner of its decision to suspend him, with pay. The record indicates that, prior to suspending him, respondent instead sought petitioner's resignation. On January 16, 1990, pursuant to my interim order, petitioner was reinstated due to respondent's failure to provide him with proper notice of the charges. On January 22, 1990, respondent served petitioner with proper notice and suspended him again. On February 20, 1990, respondent voted not to renew petitioner's contract and directed its attorney to give petitioner formal notice of its decision. Respondent's attorney prepared a letter which was sent to petitioner on February 21, 1990. Although petitioner asserts that he never received the letter, it is undisputed that a copy of the letter was finally delivered to petitioner's attorney two weeks later, on or about March 5, 1990. Consistent with its decision to remove petitioner from his position, petitioner's employment was terminated on June 30, 1992 and a new superintendent was hired effective July 1, 1992. This appeal ensued.

Petitioner asserts that he did not receive timely notice of respondent's decision not to renew his contract for an additional year, and that his contract therefore remains in full force and effect until June 30, 1993. Petitioner seeks an order invalidating respondent's action and awarding him full pay through June 30, 1993.

Respondent contends that the appeal is untimely. Respondent further contends that, even though nothing in the contract requires the notice to be in writing, the board of education provided petitioner with written notice of its intention not to renew. In any case, respondent asserts that its suspension of petitioner, coupled with its requests for his resignation, gave respondent sufficient notice of its intent not to renew his contract, far in advance of the March 1 deadline.

An appeal must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). The time to bring the appeal is determined by the effective date of the action complained of (Appeal of Quinn, 31 Ed Dept Rep 244; Appeal of Bovi, 29 id. 352; Appeal of Lavelle, 28 id. 189). Petitioner initiated this appeal on June 25, 1992. Petitioner challenges both the nonrenewal of his contract and respondent's decision to hire a new superintendent as of July 1, 1992. I find the appeal is timely, as it was commenced before the effective date of the termination of his contract.

Petitioner bears the burden to establish the continued existence of a contract (Sasmore v. Vivaudou Inc., et al., 200 Misc 1020). Where a contract is unambiguous, there is no basis to insert words to limit the effect of a termination clause (Matter of Hart, 31 AD2d 548; app. diss. 24 NY2d 738). Petitioner asserts that the contract does not clearly indicate the nature of the notice to be provided, and urges that I interpret it to require "written" notice. However, I find no ambiguity in the notice requirement. The contract simply does not include a provision that requires the notice to be in writing. I, therefore, find no basis to read into the contract an additional provision requiring written notice, where one does not exist.

Even though written notice was not required, the record indicates that respondent prepared and properly mailed such a notice on February 21, 1990. The laws of evidence recognize that a letter properly mailed is presumed to have been received (News Syndicate Co. v. Gatti Paper Stock Corp., 256 NY 211; Sasmore, supra). The mere denial of receipt, without more than a protestation, is not enough to find the service improper (Engel v. Lichterman, 62 NY2d 943). Since the letter in this case was mailed well in advance of the March 1 deadline, and petitioner has not met his burden to establish that the notice was not received, I find that petitioner was given written notice.

Assuming, arguendo, that written notice was never given, the issue becomes whether respondent, through words and action, nonetheless, provided petitioner with adequate notice pursuant to the contract. A person is deemed to have notice when he or she has actual notice or, when, from all the facts and circumstances known to him, he has reason to know whatever is at issue (Leasing Service Corp. v. Diamond Timber Inc., 559 F.Supp. 972; aff'd 729 F2d 1442). Because the contract in question merely provides for "notice of intent not to renew", the notice may be either actual or constructive. Therefore, even if actual notice was never given, constructive notice would have been sufficient to satisfy the terms of this contract.

Given respondent's repeated attempts to terminate petitioner's employment, the school board's intention not to renew his contract was clear to him. Respondent sought petitioner's termination by suspending him as superintendent of schools on December 26, 1989 and again on January 22, 1990. Respondent voted not to renew his contract on February 20, 1990. Prior to his suspension, respondent asked petitioner to resign twice.

I must conclude that, under the unique circumstances presented here, any reasonable person would have known that his employer had no intention of renewing his contract. In addition, as the superintendent of a school district who has appealed to the Commissioner and instituted proceedings in Federal Court relating to his employment rights, petitioner demonstrates a level of sophistication which indicates that he must have understood from the time it suspended him from employment, that respondent had no intention of renewing his contract. Furthermore, the purpose of requiring notice is to advise a party within the established timeframe of its intentions. Since respondent's intentions were quite clear in this case, I find petitioner was on notice of respondent's intent not to renew his contract well in advance of March 1, 1990.

THE APPEAL IS DISMISSED.

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