Opinion
March 30, 1998
Appeal from the Supreme Court, Westchester County (Murphy, J.).
Ordered that the appeal from the judgment is dismissed, as the judgment was superseded by the order dated July 2, 1997, made upon reargument; and it is further,
Ordered that the order dated July 2, 1997, is reversed insofar as reviewed, on the law, the judgment is vacated, the petition is granted, the respondents' determination is annulled, and the matter is remitted to the Board of Education, Yonkers City School District, to file an affidavit pursuant to Retirement and Social Security Law § 803 (b) (3) stating that the petitioner is eligible for retroactive membership in the New York State Teachers' Retirement System; and it is further,
Ordered that the appellant is awarded one bill of costs.
Contrary to the contention of the Board of Education, Yonkers City School District (hereinafter the School District), the petitioner's assertion that she did not participate in a procedure which a reasonable person would recognize as an explanation or request requiring a formal decision to join the retirement system amounted to substantial evidence necessary to sustain her burden under Retirement and Social Security Law § 803 (b) (3) ( see, Matter of Scanlan v. Buffalo Pub. School, 90 N.Y.2d 662; Matter of Dapp v. Board of Educ., 248 A.D.2d 712 [decided herewith]). Accordingly, the School District's denial of the petitioner's request for retroactive membership in the retirement system was arbitrary and capricious ( see, Matter of Leister v. Board of Educ., 232 A.D.2d 641, affd sub nom. Scanlan v. Buffalo Pub. School, 90 N.Y.2d 662, supra; Matter of Kaufman v. Board of Educ., 236 A.D.2d 538; Cleary v. Board of Educ., 243 A.D.2d 949; Matter of Candrea v. Board of Educ., 236 A.D.2d 536; Matter of Gregory v. Bemus Point Cent. School Dist., 237 A.D.2d 887; Matter of Fariel v. Board of Educ. 230 A.D.2d 854; cf., Hassildine v. Mattituck-Cutchogue Union Free School Dist., 225 A.D.2d 623).
Bracken, J. P., Thompson, Goldstein and Joy, JJ., concur.