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In re Alessi

Supreme Court of New York, Fourth Department

February 8, 2013

IN THE MATTER OF HEATHER ALESSI, PETITIONER-APPELLANT,
v.
BOARD OF EDUCATION, WILSON CENTRAL SCHOOL DISTRICT AND KARLENE CIESLIK, RESPONDENTS-RESPONDENTS.

Appeal from a judgment (denominated order) of the Supreme Court, Niagara County (Catherine R. Nugent Panepinto, J.), entered December 13, 2011 in a proceeding pursuant to CPLR article 78. The judgment denied the petition.

WATSON BENNETT COLLIGAN & SCHECHTER, LLP, BUFFALO (CAROLYN NUGENT GORCZYNSKI OF COUNSEL), FOR PETITIONER-APPELLANT.

HODGSON RUSS LLP, BUFFALO (KARL W. KRISTOFF OF COUNSEL), FOR RESPONDENT-RESPONDENT BOARD OF EDUCATION, WILSON CENTRAL SCHOOL DISTRICT.

RICHARD E. CASAGRANDE, LATHAM (SUSAN W. FULLER OF COUNSEL), FOR RESPONDENT-RESPONDENT KARLENE CIESLIK.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.

OPINION

Peradotto, J.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law without costs, the petition is granted in part, the determination is annulled, and respondent Board of Education, Wilson Central School District, is directed to award seniority credit to petitioner for the period between November 6, 2006 and February 10, 2010 and to reinstate petitioner to her position as a full-time probationary teacher in the foreign language tenure area with back pay and benefits.

Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination of respondent Board of Education, Wilson Central School District (District), that she was the least senior teacher in the foreign language tenure area. According to petitioner, the determination was affected by an error of law and was arbitrary and capricious. Petitioner also seeks "seniority credit" for the services that she rendered to the District from November 6, 2006 through February 10, 2010, reinstatement to her former position, and "restitution" for damages that she allegedly sustained as a result of the District's determination, which, in effect, terminated her employment. Petitioner appeals from a judgment denying the petition. We modify the judgment by granting the petition in part and annulling the District's determination.

I

Petitioner was first hired by the District in September 2006 as a part-time Spanish teacher in the foreign language tenure area. Petitioner was employed in that capacity until November 6, 2006, when she was hired as a full-time probationary Spanish teacher in the same tenure area. On June 9, 2009, the District granted petitioner tenure in the foreign language area commencing November 9, 2009.

At the time, petitioner had a provisional teaching certificate set to expire on September 1, 2009. By July 2009, petitioner had completed all of the necessary requirements to obtain her permanent teaching certificate, with the exception of passing the Spanish Content Speciality Test (CST). Petitioner took the CST in July 2009; she did not pass, and thus was not granted permanent certification to teach at that time. In August 2009, the District was notified that petitioner had failed the CST. Nonetheless, petitioner continued in her position as a full-time probationary Spanish teacher through the end of September 2009.

On October 1, 2009, the District's Superintendent demanded petitioner's immediate resignation because, having failed the CST, she was no longer certified to teach. The Superintendent assured petitioner, however, that she would be "rehired" immediately as a full-time substitute Spanish teacher until she obtained her permanent teaching certification, whereupon the District would, according to the Superintendent, rehire her as a full-time probationary Spanish teacher. Petitioner tendered her resignationand, the next day, resumed her regular teaching responsibilities, albeit now classified as a substitute teacher.

Petitioner retook the CST in December 2009, and she passed. In February 2010, petitioner received her permanent teaching certificate, and the District, as promised, thereupon rehired her as a full-time probationary Spanish teacher.

During the 2010-2011 school year, petitioner was informed that a teaching position in the foreign language tenure area would likely be abolished due to upcoming budgetary constraints. Pursuant to Education Law § 2510, a school district that abolishes a teaching position for economic reasons must discontinue "the services of the teacher having the least seniority in the system within the tenure of the position abolished" (§ 2510 [2]; see Matter of Cole v Board of Educ., S. Huntington USFD, 90 A.D.2d 419, 419-420, affd60 N.Y.2d 941; Matter of Ward v Nyquist, 43 N.Y.2d 57, 62; Matter of Kulick, 34 Ed Dept Rep [Decision No. 13428], 1995 WL 17958467, *1; Matter of Ducey, 65 NY St Dept Rep 65, 65), and the District later determined that petitioner was that least senior teacher. Consequently, in June 2011, the District ...


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