The opinion
Cardamone and Witmer, JJ. (dissenting).
In our view the letter which petitioner seeks to have expunged from his record is neither an evaluation report nor a statement of charges. It is a letter criticizing petitioner’s absence from his assigned duties. In the opinion of those whose duty it is to administer the Franklinville Central School District, petitioner’s conduct was not serious enough to warrant charges and so none were made. To permit a critical comment of a tenured teacher to be the subject of a CPLR article 78 proceeding to determine in each case whether the comment constitutes a charge in the opinion of Special Term will involve the courts in judicial tinkering detrimental to the educational system of this State. We believe, as does the Second Department (Holt v Board of Educ., 74 AD2d 839 ), that this is inappropriate. In the event that some attempt is made later to use those written comments against petitioner, such charge would have to be made within the time requirements of subdivision 1 of section 3020-a of the Education Law. In such case, petitioner would then be entitled to be heard. We believe the statutory scheme set forth in section 3020-a adequately protects petitioner’s due process rights. We therefore dissent and vote to affirm. (Appeal from judgment of Cattaraugus Supreme Court—art 78.) Present—Dillon, P. J., Cardamone, Schnepp, Doerr and Witmer, JJ.