Calendar Date: June 1, 2017
Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, Hopewell
Junction (Allison E. Smith of counsel), for appellant.
Stewart Lee Karlin Law Group, PC, New York City (Daniel E.
Dugan of counsel), for respondent.
Before: McCarthy, J.P., Lynch, Devine, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Work, J.), entered
February 22, 2016 in Ulster County, which granted
petitioner's application, in a proceeding pursuant to
CPLR article 78, to annul a determination of respondent Board
of Education of the Saugerties Central School District
denying petitioner's request for certain seniority
became an elementary teacher with the Saugerties Central
School District in 1998 and obtained tenure in 2001. She
served in that capacity until January 2004 when she went on
an unpaid leave of absence. In December 2005, petitioner
resigned. Petitioner was rehired as an elementary teacher in
2007 and, in June 2009, was granted tenure for a second time.
One year later, the District eliminated positions in the
elementary tenure area and petitioner was terminated under
Education Law § 2510 due to her relative lack of
seniority. She subsequently served in a leave replacement
position and as a substitute teacher in the District.
temporary kindergarten teaching position then became
available for the 2011-2012 school year and another former
teacher was recalled to fill it based on her seniority.
Petitioner thereafter commenced this CPLR article 78
proceeding arguing that respondent Board of Education of the
Saugerties Central School District had improperly calculated
her seniority and should have recalled her to the position.
Supreme Court initially determined that the proceeding was
barred by collateral estoppel, but, upon appeal, we disagreed
(117 A.D.3d 1157, 1158 ). On remittal, the Board served
an answer and moved for summary judgment dismissing the
petition. Supreme Court granted the petition, annulled the
Board's determination and directed the Board to
recalculate petitioner's "seniority rights and all
salary due to her." The Board now appeals.
Board maintains that petitioner's 2005 resignation
evinced her intent to sever ties with the District and
constituted a waiver of her seniority rights. "Although
an employee may waive his or her seniority rights by
resigning or retiring, such a relinquishment must be knowing
and voluntary" ( Matter of Kwasnik v King, 123
A.D.3d 1264, 1265  [internal quotation marks and
citation omitted], lv dismissed 25 N.Y.3d 981');">25 N.Y.3d 981
) and "[a]n effective waiver of such rights must
be free from any indicia of duress or coercion" (
id. at 1265-1266; see Matter of Gould v Board of
Educ. of Sewanhaka Cent. High School Dist., 81 N.Y.2d
446, 452 ). In this case, petitioner did not intend to
resign from her position in 2005 and instead sought to extend
her unpaid leave of absence. She was informed that such
extension was not possible given that she had exhausted her
unpaid leave time, however, and she elected to resign rather
than return to work. There is nothing in the record that may
be construed as duress or coercion on the part of the
District; rather, it appears that petitioner voluntarily
resigned in response to being accurately informed that she
had exhausted her leave ( see Matter of Girard v Board of
Educ. of City School Dist. of City of Buffalo, 168
A.D.2d 183, 185 ; Matter of Roman v
Tompkins-Seneca-Tioga Bd. of Coop. Educ. Servs., 98
A.D.2d 835, 836 , lv denied 61 N.Y.2d 608');">61 N.Y.2d 608
). Further, petitioner was rehired by the District as a
probationary employee after a year and half break in service,
belying any claim that she maintained a continuing employment
relationship with it ( see Education Law § 3012
 [a] [i]). Thus, the Board properly determined that
petitioner was not entitled to count the period of time prior
to her 2005 resignation for the purpose of seniority and
Supreme Court's judgment annulling said determination
must be reversed ( see Matter of Gerson v Board of Educ.
of Comsewogue Union Free School Dist., 214 A.D.2d 732,
732-733 ; Matter of Girard v Board of Educ. of City
School Dist. of City of Buffalo, 168 A.D.2d at 186;
compare Matter of Kwasnik v King, 123 A.D.3d at
1266; Matter of Alessi v Board of Educ., Wilson Cent.
Sch. Dist., 105 A.D.3d 54, 59-60 ).
McCarthy, J.P., Lynch, Clark and Aarons, JJ., concur.
that the judgment is reversed, on the law, without costs, ...