| Matter of Moraitis v Board of Educ. Deer Park Union Free SchoolDist. |
| 2011 NY Slip Op 04254 [84 AD3d 1090] |
| May 17, 2011 |
| Appellate Division, Second Department |
| In the Matter of Regina Moraitis,Respondent-Appellant, v Board of Education Deer Park Union Free School District,Appellant-Respondent. |
—[*1] Scott Lockwood, North Babylon, N.Y., for respondent-appellant.
In a proceeding pursuant to CPLR article 78 to compel the petitioner's reinstatement as afull-time teacher in an accepted tenure area, the Board of Education of the Deer Park Union FreeSchool District appeals from a judgment of the Supreme Court, Suffolk County (Rebolini, J.),entered February 5, 2010, which directed the petitioner's reclassification into an accepted tenurearea without loss of tenure time, directed her reinstatement as a full-time teacher, and directed thereinstatement of her benefits nunc pro tunc from the date of dismissal, with damages in thenature of lost salary and insurance payments, and the petitioner cross-appeals, as limited by herbrief, from so much of the same judgment as failed to include a specified amount of damages,and failed to award interest and costs.
Ordered that the judgment is reversed insofar as appealed from, on the law, the petition isdenied, and the proceeding is dismissed on the merits; and it is further,
Ordered that the cross appeal is dismissed as academic, in light of our determination on theappeal; and it is further,
Ordered that one bill of costs is awarded to the Board of Education of the Deer Park UnionFree School District.
On April 29, 2003, the Board of Education of the Deer Park Union Free School District(hereinafter the Board of Education) voted to grant the petitioner tenure in the position of"computer teacher," effective August 31, 2003. On January 16, 2009, her position as "computerteacher" was abolished. On February 9, 2009, the petitioner commenced the instant proceeding tocompel the Board of Education to "reclassify" her "into an accepted tenure area," yet to bedetermined, and to reinstate her as a full-time teacher in that tenure area, with back pay andbenefits.
Under the facts of this case, a notice of claim pursuant to Education Law § 3813 (1)was not required (see Matter of Bruneczv City of Dunkirk Bd. of Educ., 23 AD3d 1126, 1127 [2005]; Matter of Mennella vUniondale Union Free School Dist., 287 AD2d 636, 636-637 [2001]; Matter of Cowan vBoard [*2]of Educ. of Brentwood Union Free School Dist.,99 AD2d 831, 833 [1984]; Matter of Piaggone v Board of Educ., Floral Park-Bellrose UnionFree School Dist., 92 AD2d 106, 108 [1983]; Matter of Pulver v Board of Educ.,Farmingdale Union Free School Dist., 80 AD2d 833 [1981]). However, as the Board ofEducation correctly asserted, the proceeding should have been dismissed on the ground that theCommissioner of Education had primary jurisdiction over the dispute (see Matter of Ferencik v Board of Educ. ofAmityville Union Free School Dist., 69 AD3d 938 [2010]; Matter of deVente v Board of Educ.,Broome-Tioga Bd. of Coop. Educ. Servs., 15 AD3d 716, 717 [2005]; Matter ofMarkow-Brown v Board of Educ., Port Jefferson Pub. Schools, 301 AD2d 653, 653-654[2003]). It is within the unique knowledge and expertise of the Commissioner of Education todetermine the factual issues of whether the petitioner has tenure in an accepted tenure area, andwhether her former position, and any new position which she may seek, are similar in nature(see Matter of DiTanna v Board of Educ. of Ellicottville Cent. School Dist., 292 AD2d772, 773 [2002]; Matter of Donato v Board of Educ. of Plainview, Old Bethpage Cent.School Dist., 286 AD2d 388 [2001]).
The parties' remaining contentions need not be addressed in light of our determination.
Accordingly, the Supreme Court should have denied the petition and dismissed theproceeding on the merits. Rivera, J.P., Skelos, Florio and Austin, JJ., concur.