Opinion
2015-05-27
In the Matter of Ilia REGINI, appellant, v. BOARD OF EDUCATION OF BRONXVILLE UNION FREE SCHOOLS, et al., respondents.
Mastro, J.P., Balkin, Sgroi and Barros, JJ., concur.
Richard E. Casagrande, Latham, N.Y. (Susan W. Fuller, Robert T. Reilly, and James D. Bilik of counsel), for appellant. Ingerman Smith, LLP, Harrison, N.Y. (Emily J. Lucas of counsel), for respondents.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and BETSY BARROS, JJ.
In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Board of Education of the Bronxville Union Free Schools to appoint the petitioner to a position of part-time Spanish teacher, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Hubert, J.), entered September 20, 2013, which denied the petition and dismissed the proceeding on the merits.
ORDERED that the judgment is affirmed, with costs.
In 2001, the petitioner, who was certified to teach Spanish, was hired by the Bronxville Union Free Schools (hereinafter the School District) as a foreign language teacher in the elementary school. Thereafter, the petitioner taught Spanish and acquired tenure in that position. In 2010, her position was abolished for economic reasons, and her name was placed on a “preferred eligible list” for appointment to any vacancy which may arise in a similar position within seven years from the date that her position was abolished ( seeEducation Law §§ 2510[3][a]; 3013[3][a] ). In 2011, the respondent Board of Education of the Bronxville Union Free Schools (hereinafter the Board) created a full-time position of “French/Spanish Teacher 7–12” and hired the respondent Nicholas Rastegar, who was certified to teach both French and Spanish, to fill that vacancy.
Subsequently, the petitioner commenced this proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Board to appoint her to a position of part-time Spanish teacher. She alleged in her petition that the Board, in effect, created “a teaching position that is [part-time] Spanish and [part-time] French,” and that she was entitled pursuant to Education Law §§ 2510(3)(a) and 3013(3)(a) to be appointed to the purported part-time Spanish teacher position. The Supreme Court denied the petition and dismissed the proceeding on the merits.
“[CPLR] article 78 relief in the form of mandamus to compel may be granted only where a petitioner establishes a clear legal right to the relief requested” (Matter of Council of City of N.Y. v. Bloomberg, 6 N.Y.3d 380, 388, 813 N.Y.S.2d 3, 846 N.E.2d 433 [internal quotation marks omitted]; see Matter of Imburgia v. Procopio, 98 A.D.3d 617, 619, 949 N.Y.S.2d 727; Matter of Rozz v. Nassau County Dept. of Assessment, 96 A.D.3d 952, 954, 946 N.Y.S.2d 619). In determining whether a teacher is entitled to re-employment pursuant to Education Law §§ 2510 or 3013, “ ‘the threshold question must be one of certification to teach in the position sought. Absent such certification, re-employment rights cannot attach’ ” ( Matter of Davis v. Mills, 98 N.Y.2d 120, 124, 748 N.Y.S.2d 890, 778 N.E.2d 540, quoting Matter of Ward v. Nyquist, 43 N.Y.2d 57, 63, 400 N.Y.S.2d 757, 371 N.E.2d 477; see Matter of Levy v. Board of Educ. of Freeport Union Free School Dist., 275 A.D.2d 459, 459, 713 N.Y.S.2d 82).
Here, the petitioner does not challenge the propriety of the Board's decision to create a single full-time position encompassing instruction of both French and Spanish. Thus, the petitioner's claim must fail because, as the petitioner concedes, she lacks the dual certification necessary for the full-time position ( see Matter of Davis v. Mills, 98 N.Y.2d at 124, 748 N.Y.S.2d 890, 778 N.E.2d 540; Matter of Ward v. Nyquist, 43 N.Y.2d at 63, 400 N.Y.S.2d 757, 371 N.E.2d 477; Matter of Levy v. Board of Educ. of Freeport Union Free School Dist., 275 A.D.2d at 459, 713 N.Y.S.2d 82; Matter of Brown v. Board of Educ., Morrisville–Eaton Cent. School Dist., 211 A.D.2d 887, 888, 621 N.Y.S.2d 167; Matter of Schimmel v. Board of Educ., S. Kortright Cent. School Dist., 111 A.D.2d 966, 968, 490 N.Y.S.2d 64).
Since the petitioner failed to demonstrate a clear legal right to the relief sought, the Supreme Court properly denied the petition and dismissed the proceeding on the merits.
In view of the foregoing, we need not reach the respondents' remaining contentions.