I dissent.
The court at Special Term, and the majority of this court, have proceeded as if the arbitrator arrogated to himself the power to grant tenure, notwithstanding the majority’s proper *27acknowledgment that if Terrance Hagen were to acquire tenure, it would be by operation of law. In holding that the judgment should direct reinstatement of Terrance Hagen for utilization of probationary evaluation procedures, the majority relies upon Matter of Legislative Conference of City Univ. of N. Y. v Board of Higher Educ. of City of N. Y. (38 AD2d 478, affd 31 NY2d 926); Red Jacket Cent. School Dist. v Red Jacket Faculty Assn. (45 AD2d 924); Matter of Central School Dist. No. 2 (Livingston Manor Teachers Assn.) (44 AD2d 876); and Board of Educ. of Chautauqua Cent. School Dist. v Chautauqua Cent. School Teachers Assn. (41 AD2d 47). Each of these cases contains one fundamental factual similarity which in my view makes them distinguishable from the case at bar. In all of them, a probationary teacher was dismissed from his or her position without a statement of reasons, which was (and in the absence of contrary contractual provision is) within the power of the educational authority involved, but grievances were brought which all alleged solely procedural irregularities in the implementation of evaluation procedures during the period of probationary employment. Since the power of dismissal was unfettered, these decisions were correct in their holdings that an arbitration award could not be sustained which would seize upon procedural irregularities to effectuate tenure indirectly.
In the present case, however, the arbitrator has found that petitioner School District has, by contract, agreed to limit its power to dismiss any teacher, whether tenured or probationary, to only those situations where just cause is shown. Since the majority appears to agree that this is a matter of contract interpretation which cannot be set aside, it is the absence of substantive just cause which lies at the heart of the arbitrator’s award in the case before us. Petitioner does not contend that there did exist just cause for Hagen’s dismissal which would have been demonstrated had proper evaluation procedures been employed. Thus, as noted by the arbitrator, the issue regarding alleged procedural violations of Hagen’s right to evaluation, and the propriety of his dismissal in the absence of just cause, are entirely distinct.
In these circumstances, no purpose would be served by requiring the continuation of Hagen’s probationary status, nor are the powers of the petitioner diminished, for as the arbitrator noted, Hagen’s accountability and exposure to termination for incompetence, misconduct or other just cause remains the *28same whether or not he be granted tenure. In either case, as the arbitrator found, the collective bargaining agreement requires that an affirmative showing of incompetence be made after a teacher has been evaluated before dismissal can be permitted. In recognizing this, the arbitrator did not himself grant tenure, but in the absence of such a showing, merely permitted applicable statutes to become operative. I see no basis for finding that the arbitrator exceeded his powers in these circumstances, and therefore would vote to modify the judgment so as to confirm the award.
Herlihy, P. J., Main and Reynolds, JJ., concur with Koreman, J.; Greenblott, J., dissents and votes to modify in a separate opinion.
Judgment modified, on the law, by striking the first paragraph thereof and by substituting therefor: "petitioner’s application to vacate arbitrator’s award granted to the extent that the remedy furnished by the arbitrator is vacated, matter remitted to the arbitrator with a direction to order the Cohoes School District to reinstate petitioner, Terrance Hagen, as a teacher for the period of one year without tenure, during which period the evaluation machinery may be utilized”, and, as so modified, affirmed, without costs.