Opinion
March 9, 1987
Appeal from the Supreme Court, Suffolk County (Orgera, J.).
Ordered that the judgment is modified, on the law and the facts, by deleting the second, third and fourth decretal paragraphs thereof and substituting therefor provisions adjudging that the Federally funded School to Work Transition Program was similar to the petitioner's position as a matter of law, and ordering the petitioner reinstated to the School to Work Program nunc pro tunc to the date when the vacancy first came into existence; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of the vacancy date and the calculation of any back pay owed to the petitioner.
The part-time position in the respondent's program which was created through funding by a Federal grant consisted entirely of duties formerly performed by the petitioner. Thus the new part-time position and the petitioner's former position were "similar" within the meaning of Education Law § 2510 (3) (see, Matter of Abrams v. Ambach, 43 A.D.2d 883, 884; see also, Matter of Young v. Board of Educ., 35 N.Y.2d 31, 34), and the petitioner was entitled to reinstatement in that position.
On the other hand, although some of the duties assumed by other teachers as part of a restructured position in the respondent's program were the same as those formerly assigned to the petitioner, those duties amounted to less than half of the duties of the restructured position. Thus the petitioner was not entitled to reinstatement in the restructured position because it was not "similar" to her former position (see, Matter of Currier v. Tompkins-Seneca-Tioga Bd. of Coop. Educ. Servs., 80 A.D.2d 979; Matter of Dinan v. Board of Educ., 74 A.D.2d 922, 923; Education Law § 2510). Thompson, J.P., Niehoff, Lawrence and Kunzeman, JJ., concur.