— Order and judgment (one paper), of the Supreme Court, New York County (Scott, J.), entered March 1,1983, inter alia, granting petitioners summary judgment on the first two causes of action, modified, on the law, to the extent of reversing summary judgment and remanding those two causes of action for further proceedings, and otherwise affirmed, without costs. Petitioner Taylor (petitioner) is the principal of Intermediate School 44 (I.S. 44) which is part of Community School District 3. The remaining petitioners are current members of Community School Board District 3 (CSB 3), a former member of the board, and parents of children who attend I.S. 44. The respondents are Berberian, the superintendent of CSB 3, the community school board and the chancellor of the Board of Education of the City of New York. The issue here involved is whether petitioner acquired tenure as principal of I.S. 44. On June 1, 1979 petitioner was designated as acting principal of I.S. 44 for the school year commencing September, 1979. Ms. Taylor accepted the assignment. In April, 1981 she made application for a license as a junior high school principal. On July 2,1981 she received her license and on August 17,1981 she was appointed principal of I.S. 44. For the service rendered by her as acting principal she was given two years of tenure credit leaving one year of probationary service remaining (Education Law, § 2573, subd 1, par [b]). On April 27, 1982 she was notified by respondent that he was not recommending that she “be granted certification of completion of probation (tenure) as a Junior High School Principal” and that her appointment would terminate on the final day of her probationary period, which he fixed as June 30,1982. She was further advised that, under the collective agreement between the Council of Supervisors and Administrators (CSA), petitioner’s collective bargaining agent, and the board of education, the CSA could invoke the automatic review procedure prescribed by the by-laws of the board of education. On June 24, 1982 the CSA filed an appeal from respondent’s determination. The matter was referred to the Office of Appeals and Review (OAR) which, upon investigation ascertained that petitioner had filed a grievance under the collective bargaining agreement with respect to 8 of the 11 letters in her file indicating dissatisfaction with her functioning and performance in areas pertaining to her principalship of I.S. 44. OAR notified CSA that the review sought could not proceed until the grievance filed by petitioner had run its full course. On June 29, 1982, the day prior to the day fixed in respondent’s letter for the termination of petitioner’s appointment, petitioner instituted this proceeding and moved to restrain her removal. Pending disposition of the application the status quo was maintained by a temporary restraining order. On August 4, 1982, the preliminary injunction was granted. Special Term noted that respondent had mistaken the date of termination of petitioner’s probation, fixing it approximately a month and a half earlier than in fact it terminated. It held that in order to terminate the services of a probationer prior to the termination of the probationary period, the recommendation of the superintendent required the approval of a majority of the community school board (Education Law, § 2573, subd 1, par [b]). Since the matter had not been submitted to the board, the required approval had not been obtained. Additionally, Special Term found that respondent had not endeavored to rebut petitioner’s specific allegations which concluded with the charge that her termination was arbitrary and capricious. Accepting these allegations as true, as it was required to do in light of the failure to controvert them, it concluded that the denial of tenure was contrary to law. In order to prevent petitioner from obtaining tenure by estoppel, respondent forwarded to her a revised letter dated August 13, 1982 terminating her appointment on August 17, 1982, “the final day of *798your [petitioner’s] probationary period”. The petition sets forth seven causes of action, only two of which, those dealing with the issue of petitioner’s tenure, are here germane. The remaining five causes involve actions at law. Respondents interposed their answer and substantially simultaneously they moved for summary judgment. Special Term, upon searching the record, granted summary judgment on the first two causes of action to petitioners. It severed the remaining causes of action. Respondent does not deal with the five severed causes of action on this appeal. We are in accord with Special Term’s conclusion that these five remaining causes of action were required to be severed. However, we disagree with the holding that petitioner acquired tenure by estoppel and we modify accordingly. Petitioner does not dispute that under subdivision 6 of section 2573 the power of the school board with respect to the granting of tenure is essentially ministerial in nature and when a recommendation for tenure is made by the community superintendent, the community school board shall immediately thereafter issue a permanent certificate of appointment (Matter of Caraballo v Community School Bd. Dist. 3, 49 NY2d 488). However, she contends that section 2573 (subd 1, par [b]) is the statute properly applicable and under that section she could be terminated during her probationary period only “by a majority vote of the board”. While we agree with petitioner’s interpretation of section 2573 (subd 1, par [b]), we hold it has no application since respondent’s termination of petitioner was made effective upon completion of her probationary term. We conceive the rule to be as stated by Judge Meyer in his concurring opinion in Matter of United Liverpool Faculty Assn, v Board of Educ. (52 NY2d 1038, 1041-1042): “(1) that with respect to termination of employment during an employee’s probationary period, ultimate discretion is uniformly in the school board, (2) that the decision to terminate employment at the end of the probationary period can only be made by the district superintendent, and (3) that as to a grant of tenure, the ultimate authority is in the board of education in districts governed by section 2509* of the Education Law, but in all other districts is in the district superintendent”. (Emphasis supplied.) Under the circumstances, we modify to reverse the grant of summary judgment on the first two causes of action and hold that the power to terminate petitioner’s employment as of August 17, 1982 lay exclusively with respondent. However, since there are issues with respect to the first two causes which still remain to be disposed of, we remand for further proceedings. Concur — Sullivan and Bloom, JJ. Sandler, J. P., concurs in a separate memorandum and Fein and Alexander, JJ., dissent in a memorandum by Alexander, J., all as follows:
School districts of each city which according to the latest Federal census has less than 125,000 inhabitants (Education Law, § 2501). Footnote not in quotation.