White v. Freyman

265 A.D.2d 563, 697 N.Y.S.2d 143, 1999 N.Y. App. Div. LEXIS 10790

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 1999
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Education, Ossining Union Free School District, dated March 15, 1996, which, after a hearing, affirmed the denial of the petitioner’s application pursuant to Retirement and Social Security Law § 803 for retroactive membership in the New York State Teachers’ Retirement System, Tier II, the appeal is from a judgment of the Supreme Court, Westchester County (LaCava, J.), entered September 25, 1998, which granted the petition, annulled the determination, and directed the Board of Education, Ossining Union Free School District, to file an appropriate affidavit with the New York State Teachers’ Retirement System attesting to the petitioner’s eligibility for retroactive membership.

Ordered that the judgment is affirmed, with costs.

Contrary to the determination of the Hearing Officer, the petitioner satisfied her initial burden of demonstrating that she met the requirements, of Retirement and Social Security Law § 803 (b) (3) (see, Matter of Rainson v Board of Educ., 256 AD2d 411; cf., Matter of Forlenza v Board of Educ., 256 AD2d 409). The appellants failed to establish that at the time the petitioner was hired they had informed her of her right to join the retirement system. Accordingly, the petition should be granted (see, Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662; Matter of Spector v Board of Educ., 251 AD2d 588). Joy, J. P., Friedmann, Goldstein and McGinity, JJ., concur.