Opinion
Argued April 20, 1970
Decided May 13, 1970
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, RICHARD ARONSON, J.
Don P. Murnane for appellant.
Roger H. Williams and Kevin B. Blaney for respondent.
James R. Sandner for New York State Teachers Association, amicus curiae.
Order reversed, without costs, and matter remitted to Special Term for further proceedings in accordance with the following memorandum: Neither Special Term nor the Appellate Division had the power to determine petitioner's right to sick leave on the basis of proof never presented to the Superintendent of Schools and on which he never had the opportunity to pass. The responsibility to make the determination, in any event, was solely that of the Superintendent. Consequently matter should be remitted to the Superintendent for reconsideration de novo.
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON.