Van Derzee v. Board of Education of Odessa-Montour Central School District

228 A.D.2d 998, 644 N.Y.2d 847, 644 N.Y.S.2d 847, 1996 N.Y. App. Div. LEXIS 7483

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 27, 1996
• Status: Published

Opinion

Mercure, J.

Petitioner was first hired as a substitute teacher by respondent Board of Education of the Odessa-Montour Central School District (hereinafter respondent) in the fall of 1985. By September 1991, she was employed by respondent in a part-time teaching position which was not a probationary appointment. Petitioner was offered employment as a full-time probationary, i.e., tenure-track, elementary teacher on three occasions, but elected to remain in her part-time nonprobationary position.

In January 1994, after petitioner had turned down the third offer of a probationary, tenure-track position, the job was accepted by respondent Kathryn Anagnost. In the spring of 1994, however, respondent passed a resolution abolishing petitioner’s part-time teaching position and reducing Anagnost’s full-time teaching position to a 60% part-time position. Petitioner then commenced the instant CPLR article 78 proceeding, arguing that respondent should have abolished Anagnost’s position entirely while leaving petitioner, a nine-year veteran teacher in respondent’s employ, in her part-time teaching position. Supreme Court disagreed and dismissed the petition.

Petitioner was not a tenured or even a probationary teacher at the time her part-time position was abolished in 1994. Hence, her employment was unprotected by Education Law § 2510 (2), which provides that when a teaching position is to be abolished, "the services of the teacher having the least seniority in the system within the tenure of the position abolished shatll be discontinued” (emphasis supplied). Because she worked part-time, petitioner was not a probationary teacher on a tenure track, i.e., "within the tenure of the position abolished” (Education Law § 2510 [2]; see, Matter of Ceparano v Ambach, 53 NY2d 873, 875, revg 74 AD2d 978). Her services could be discontinued at respondent’s option despite her years of employment (see, Matter of Yanoff v Commissioner of Educ. of State of N. Y, 66 AD2d 919, 920, lv denied 47 NY2d 711).

We are not persuaded by petitioner’s contention that she should have been appointed to the part-time position conferred upon Anagnost, pursuant to the terms of Education Law § 2510 (3). That section applies only to the filling of an existing or future vacancy. Here, there was no vacancy as Anagnost never vacated her position; she merely retained her previous position in a reduced form (see, Matter of Gettinger v Putnam/ Northern Westchester Bd. of Coop. Educ. Servs., 158 AD2d 688, 689).

Cardona, P. J., White, Casey and Peters, JJ., concur. Ordered that the judgment is affirmed, without costs.