MATTER OF ZURLO v. Ambach

New York Court of Appeals

MATTER OF ZURLO v. Ambach

425 N.E.2d 874, 53 N.Y.2d 1035, 442 N.Y.S.2d 486, 1981 N.Y. LEXIS 2562

CourtNew York Court of Appeals

DecidedJune 11, 1981

StatusPublished

Cited by4 cases

This text of 425 N.E.2d 874 (MATTER OF ZURLO v. Ambach) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

MATTER OF ZURLO v. Ambach, 425 N.E.2d 874, 53 N.Y.2d 1035, 442 N.Y.S.2d 486, 1981 N.Y. LEXIS 2562 (N.Y. 1981).

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Opinion

*1037 OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

As a physical education teacher whose full-time position was abolished, petitioner was entitled to preference for appointment to a vacancy thereafter occurring in a similar position whether part time or full time (Education Law, § 2510, subd 3). He was accorded that preference by being given a half-time physical education position. But the limitations in subdivision 1 of section 2510 with respect to abolishing, a position and creating another for performance of similar duties, and in subdivision 3 of that section to a position consolidated with another position without creating a new position, refer in each instance to the terminated teacher’s position. Here there has been consolidation not of petitioner’s former position, but of the position which became vacant when another teacher resigned at the end of the year after petitioner’s original position was abolished, and of the half-time position to which petitioner had been appointed, to create two three-quarter time positions.

Section 2503 (subd 5) empowers the board to “create, abolish, maintain and consolidate such positions * * ' * as, in its judgment, may be necessary for the proper and efficient administration of its work”. Since the consolidation of positions to which petitioner objects does not, on the facts of this case, violate section 2510, we need not consider further the relative priority of the two sections. Nor, the matter being one entrusted by the Legislature to the judgment of the board, should we, as petitioner would have us do, second guess the board’s decision. It is enough that, as shown by the facts that petitioner was retained at half time, has now been increased to three-quarter time, and remains on the preferred list for any full-time vacancy, there is no basis for finding that the board acted in bad faith.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed,, with costs, in a memorandum.

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*1037 OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

As a physical education teacher whose full-time position was abolished, petitioner was entitled to preference for appointment to a vacancy thereafter occurring in a similar position whether part time or full time (Education Law, § 2510, subd 3). He was accorded that preference by being given a half-time physical education position. But the limitations in subdivision 1 of section 2510 with respect to abolishing, a position and creating another for performance of similar duties, and in subdivision 3 of that section to a position consolidated with another position without creating a new position, refer in each instance to the terminated teacher’s position. Here there has been consolidation not of petitioner’s former position, but of the position which became vacant when another teacher resigned at the end of the year after petitioner’s original position was abolished, and of the half-time position to which petitioner had been appointed, to create two three-quarter time positions.

Section 2503 (subd 5) empowers the board to “create, abolish, maintain and consolidate such positions * * ' * as, in its judgment, may be necessary for the proper and efficient administration of its work”. Since the consolidation of positions to which petitioner objects does not, on the facts of this case, violate section 2510, we need not consider further the relative priority of the two sections. Nor, the matter being one entrusted by the Legislature to the judgment of the board, should we, as petitioner would have us do, second guess the board’s decision. It is enough that, as shown by the facts that petitioner was retained at half time, has now been increased to three-quarter time, and remains on the preferred list for any full-time vacancy, there is no basis for finding that the board acted in bad faith.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed,, with costs, in a memorandum.

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425 N.E.2d 874, 53 N.Y.2d 1035, 442 N.Y.S.2d 486, 1981 N.Y. LEXIS 2562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-zurlo-v-ambach-ny-1981.

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