| Matter of Ferencik v Board of Educ. of Amityville Union Free SchoolDist. |
| 2010 NY Slip Op 00679 [69 AD3d 938] |
| January 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of Denise M. Ferencik, Appellant, v Board ofEducation of Amityville Union Free School District et al.,Respondents. |
—[*1] Babchik & Young LLP, White Plains, N.Y. (Jack Babchik and Jordan Sklar of counsel), forrespondents.
In a proceeding pursuant to CPLR article 78, inter alia, to compel the respondents toretroactively appoint the petitioner to a teaching position, the petitioner appeals, as limited byher brief, from so much of an order and judgment (one paper) of the Supreme Court, NassauCounty (Woodard, J.), dated May 29, 2008, as denied the petition and dismissed the proceeding.
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
The petitioner's position as an art teacher in the Amityville Union Free School District(hereinafter the district) was abolished in 1992, and she was rehired by the district in 2001. In2007 she commenced this proceeding alleging that in 2006, she became aware that an artposition had become available in 1994 for which she should have been appointed pursuant toEducation Law § 3013 (3) (a). Contrary to the petitioner's contention, the Supreme Courtproperly denied the petition and dismissed the proceeding pursuant to the doctrine of primaryjurisdiction, as the Commissioner of Education has the specialized knowledge and expertise toresolve, in the first instance, the factual question of whether a position similar to the petitioner'sformer position became available in 1994 (see Matter of deVente v Board of Educ.,Broome-Tioga Bd. of Coop. Educ. Servs., 15 AD3d 716, 718 [2005]; Matter ofMarkow-Brown v Board of Educ., Port Jefferson Pub. Schools, 301 AD2d 653, 653-654[2003]; Matter of Donato v Board of Educ. of Plainview, Old Bethpage Cent. SchoolDist., 286 AD2d 388 [2001]).
The parties' remaining contentions are without merit or not properly before this Court.Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur. [Prior Case History: 2008 NY Slip Op31595(U).]