| Matter of Diggins v Honeoye Falls-Lima Cent. School Dist. |
| 2008 NY Slip Op 03742 [50 AD3d 1473] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Michael Diggins, Appellant, v Honeoye Falls-LimaCentral School District et al., Respondents. |
—[*1] Wayne A. Vander Byl, Williamson, for respondents-respondents.
Appeal from a judgment (denominated order) of the Supreme Court, Monroe County(Matthew A. Rosenbaum, J.), entered April 23, 2007 in a proceeding pursuant to CPLR article78. The judgment dismissed the petition.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawwithout costs, the petition is granted in part, the determination is annulled and respondent Boardof Education of Honeoye Falls-Lima Central School District is directed to reinstate petitioner tohis position as a tenured teacher forthwith with back pay and benefits retroactive to September 1,2006.
Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 seeking,inter alia, to annul the determination terminating his employment. We agree with petitioner thatrespondents failed to establish by clear and convincing evidence that he intended to abandon hisposition as a tenured teacher (see Ciccarelli v Board of Educ. of W. Seneca Cent. SchoolDist., 107 AD2d 1050 [1985]), and we thus further agree with petitioner that he was entitledto, but was not afforded, notice and a hearing before his employment was terminated (seeEducation Law §§ 3020, 3020-a). Contrary to the contention of respondents, thefailure of petitioner to advise them of his reason for not returning to work did not constitute anabandonment of his position, inasmuch as that reason was known to respondents and wasreasonable (see Matter of Rowland v Oswego City School Dist., 97 Misc 2d 42, 45-46[1978]). We therefore reverse the judgment, grant the petition in part, annul the determinationand direct respondent Board of Education of Honeoye Falls-Lima Central School District (Board)to reinstate petitioner to his position forthwith. In view of the fact that petitioner was absentbecause respondents assigned him to work at a location to which they knew he could not legallyreport, and because petitioner actively sought reinstatement at all times, we further direct theBoard to reinstate petitioner with [*2]back pay and benefitsretroactive to September 1, 2006 (see Matter of Winter v Board of Educ. for Rhinebeck Cent.School Dist., 79 NY2d 1, 9 [1992], rearg denied 79 NY2d 978 [1992]; Matter ofKohler v Board of Educ. of S. Huntington Union Free School Dist., 142 AD2d 676, 677-678[1988], lv denied 74 NY2d 603 [1989]). Present—Scudder, P.J., Martoche, Smith,Green and Gorski, JJ.