Presiding Justice Henry Scudder
Marshall appealed from a judgment granting the Pittsford Central School District’s motion to dismiss her petition in which she claimed she was entitled to tenure and reinstatement. Marshall was hired as a probationary teacher, but at the end of her three-year probation she was told she would not be recommended for tenure. In lieu of termination, Marshall entered into a Juul agreement with the district, granting her a fourth probationary year in exchange for a waiver of her right to a claim of tenure by estoppel. At the end of the fourth year, Marshall was again told she would not be recommended for tenure and that her appointment would end on June 30, 2011. She began an Article 78 proceeding seeking reinstatement. The court found Marshall’s waiver of her right to a claim of tenure served as the “quid pro quo for countervailing benefits,” stating she could not accept benefits under a fairly made contract, while simultaneously questioning its validity. Thus, it affirmed the judgment. Justice Fahey concurred with the result, but believed the Juul agreement was an employment contract and should be characterized as such.