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SUPREME COURT OF NEW YORK, SPECIAL TERM, ALBANY COUNTY 1969.NY.40624 <>; 302 N.Y.S.2d 669; 60 Misc. 2d 166 February 26, 1969 IN THE MATTER OF JACQUELINE PERELSON, ON BEHALF OF HERSELF AND ALL PERSONS SIMILARLY SITUATED, PETITIONER,v.EWALD B. NYQUIST, AS ACTING COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK, RESPONDENT Eugene M. Kaufman for petitioner. Robert D. Stone, John P. Jehu, Joseph F. Gibbons and Lawrence W. Reich for respondent. Louis G. Bruhn, J. Author: Bruhn

Louis G. Bruhn, J.

Author: Bruhn

 This is a motion on behalf of the respondent in an article 78 proceeding "for an order pursuant to Civil Practice Law and Rules, section 7804(f), dismissing the petition upon the grounds that the petition does not state facts sufficient to constitute a cause of action and for such other and further relief as to this Court may seem just and proper."

To adequately understand the problem involved necessitates a recital of events beginning in 1964.

Each of the petitioners herein began service as regular substitute teacher in the employ of the Board of Education of the City of New York on February 3, 1964, the first day of the 1964 spring term, and each served continuously until June 26, 1964, the last day of such term.

While regularly employed teachers in the New York City system who worked from February 3, 1964 through February 28, 1964 were paid a full month or 1/12th of their annual salary, the petitioners were paid only 28/30ths of that month.

The board's refusal to compensate these regular substitute teachers for the full month of February, 1964 precipitated an appeal to the Commissioner of Education by Arnold Cohen and 38 others of their number.

On April 18, 1966, the Acting Commissioner of Education rendered a decision (Matter of Cohen, 5 N. Y. Educ. Rep. 168, 170) in that appeal and held, inter alia, that: "However in this instance, in view of the fact that respondent's appointment was as of February 3, 1964, and the preceding two days were Saturday and Sunday, appellant rendered all services which could have been required for the month, and is equitably entitled to the full month's pay." (Italics supplied.) Dissatisfied with such result the board applied to reopen that decision and the Acting Commissioner in a decision (Matter of Cohen, 6 N. Y. Educ. Rep. 99, 100) rendered March 7, 1967 concluded: "Although I have reviewed the additional material submitted on behalf of respondent, it is nevertheless apparent that the appellants here, in fact, rendered a full month's work and are entitled to a full month's pay for the period in question." (Italics supplied.)

Before proceeding further with a recital of the sequential events that followed several matters should be noted.

First, over two years had transpired from February, 1964 until the Commissioner's first decision of April 18, 1966, almost another year before his final decision of March 7, 1967 and over three years from February, 1964 until March, 1967.

Since laches are being asserted as a defense to the petitioners' present application, such defense, if available at all, certainly should be equated with the time (over three years) consumed by the board in resisting a final adverse determination of the issue.

It must also be noted that until March 7, 1967 there was no final determination of the Commissioner which this petitioner or any other similarly situated teacher could possibly have availed herself of even if she had been specifically named in the Arnold Cohen petition.

It should also be noted that if there was any doubt that the Commissioner's original determination was intended to apply only to Arnold Cohen and not any other teacher or teachers similarly situated, such doubt should have been dispelled by the pluralistic language used by the Commissioner in his March 7, 1967 opinion.

Furthermore, even if this petitioner had been specifically named in the Cohen petition, after the Commissioner's decision of March 7, 1967 there would have been absolutely no logical reason for her to have appealed since the decision clearly indicated a determination by him not limited to a teacher with a unique or singular problem but rather a determination extending to all teachers whose employment as regular substitutes in February, 1964 was identical with that of Cohen so far as payment for the first two days of February, 1964 was concerned.

Certainly it would have been a simple matter for the Commissioner to have chosen different and appropriate language if he intended his decision to have had a ...

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