Ciccarelli v. Board of Education of the West Seneca Central School District

107 A.D.2d 1050, 486 N.Y.S.2d 578, 1985 N.Y. App. Div. LEXIS 42869

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 1985
• Status: Published

Opinion

Judgment unanimously reversed, on the law, with costs, and petition granted in accordance with the following memorandum: Special Term erred in dismissing petitioner’s CPLR article 78 petition. The record is devoid of evidence that petitioner “abandoned” her tenured teaching position. “[T]he burden of proving abandonment is upon the school district and must be established by clear and convincing evidence that the petitioner, by a voluntary and deliberate act, intended to relinquish her teaching position and forfeit her tenure rights (see Matter of Boyd v Collins, 11 NY2d 228; People ex rel. Patterson v Board of Educ., 295 NY 313; Matter of Johnson, 3 Ed Dept Rep 186; Matter of Schiliro, 13 Ed Dept Rep 163; Matter of Widrick, 16 Ed Dept Rep 248)” (Matter of Rowland v Oswego City School Dist., 97 Misc 2d 42, 45). Petitioner’s employment may be terminated only in accordance with the procedures under section 3020-a of the Education Law. Thus the resolution of the Board is annulled and petitioner reinstated with back pay and benefits from December 20, 1982. (Appeal from judgment of Supreme Court, Erie County, Kramer, J. — CPLR art 78.) Present — Callahan, J. P., Denman, Boomer, O’Donnell and Schnepp, JJ.