Gagnon v. Wappingers Central School District Board of Education

—In a proceeding pursuant to CPLR article 78 to review a determination of the respondent dated March 31, 1998, denying the petitioner’s untimely request for a hearing pursuant to Education Law § 3020-a, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Hillery, J.), dated December 21, 1998, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The petitioner was terminated from his position as a tenured teacher based on charges brought pursuant to Education Law § 3020-a. Because the petitioner failed to make a timely demand for a hearing pursuant to Education Law § 3020-a, the determination was rendered without a hearing. The petitioner thereafter commenced this proceeding pursuant to CPLR article 78 alleging that his failure to make a timely demand for a hearing was excusable and, therefore, the failure of Wappingers Central School District Board of Education (hereinafter the Board) to accept his untimely demand for a hearing was arbitrary and capricious and an abuse of discretion (see, Educa*473tian Law § 3020-a). However, in opposition to the Board’s motion to dismiss, the petitioner failed to proffer any evidence that he in fact requested permission to file a late demand for a hearing, or to rebut the sworn assertions proffered by the Board that no such request was ever made. Thus, the Supreme Court properly denied the petition and dismissed the proceeding. Mangano, P. J., Ritter, Goldstein and H. Miller, JJ., concur.