Opinion
100
Decided June 11, 2002.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered December 13, 2001, which affirmed a judgment of the Supreme Court (John G. Connor, J.), entered in Albany County in a proceeding pursuant to CPLR article 78, dismissing a petition to review a determination of respondent Commissioner of Education denying petitioner's request for reappointment to his teaching position.
Matter of Bojarczuk v. Mills, 287 A.D.2d 82, reversed.
Submitted by Kevin H. Harren, for appellant.
Submitted by Donald R. Gerace, for respondents Board, et al.
Submitted by Kathleen M. Treasure, for respondent State Commissioner.
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this memorandum.
As the Commissioner concedes, the Utica City School District abolished petitioner's probationary teaching position when Oneida-Herkimer-Madison Board of Cooperative Educational Services (BOCES) took over its Alternative Educational Program (see Education Law § 3014-a;Koch v Putnam-Northern Westchester Bd. of Coop. Educ. Servs., 98 A.D.2d 311, 315-316, lv dismissed 63 N.Y.2d 607). We reject the Commissioner's and the District's argument that, because he was afforded seniority rights under section 3014-a, petitioner received all the rights to which he was entitled (see Koch, 98 A.D.2d at 315-316). Section 3014-a(4) provides that "[t]his section shall in no way be construed to limit the rights of any of such employees set forth in this section granted by any other provision of law." Thus, the existence of a teacher's rights under section 3014-a does not preclude the existence of additional recall rights in the District under sections 2510(3) and 3013(3) (see Koch, 98 A.D.2d at 315-316; Matter of Acinapuro v. Board of Coop. Educ. Servs. of Nassau County, 89 A.D.2d 329, 335-336).
Specifically, a teacher whose position has been abolished during a BOCES takeover of a school district program has the right to be placed on the school district's preferred eligibility list for employment for seven years in accordance with sections 2510(3) and 3013(3), provided the teacher otherwise qualifies for the statutes' benefits (see Education Law §§ 2510, 3013; Matter of Schimmel v. Board of Educ. S. Kortight Cent. School Dist., 111 A.D.2d 966, 968); see also Matter of Brewer v. Board of Educ. of Plainview Old Bethpage Cent. School Dist., 51 N.Y.2d 855, 857). Inasmuch as neither court below passed on whether petitioner so qualifies, we remit to Supreme Court for such further proceedings.
On review of submissions pursuant to section 500.4 of the Rules, order reversed, with costs, and matter remitted to Supreme Court,
Albany County, for further proceedings in accordance with the memorandum herein.