Opinion
March 4, 1985
Appeal from the Supreme Court, Nassau County (Delin, J.).
Judgment reversed, on the law and the facts, with costs, and petition dismissed on the merits.
Contrary to Special Term's determination, we find that the duties of the newly created position of vocational rehabilitation counselor are not "similar" to the duties performed by work experience counselors within the meaning of Education Law § 2510 (3). The crucial difference between the two positions is "`the responsibility to teach that rests on the [work experience counselor] but not the [vocational rehabilitation counselor]'" ( Matter of Smith v. Board of Educ., 97 A.D.2d 795, 797, quoting the decision of Special Term therein). As the record indicates, the work experience counselor position is a pedagogical one, requiring a teaching certificate and the rights of the incumbents of that position are governed by the Education Law. The position of the vocational rehabilitation counselor is a nonpedagogical one; no teaching certificate is required, and the rights of the incumbents are governed by the Civil Service Law ( Matter of Smith v. Board of Educ., supra). Consequently, although on the "preferred eligible list" of excessed work experience counselors, petitioner Shearod was not entitled to appointment to the new position of vocational rehabilitation counselor, pursuant to Education Law § 2510 (3). Titone, J.P., O'Connor, Lawrence and Eiber, JJ., concur.