Opinion
June 13, 1977
In an action, inter alia, to declare the defendant board of education's classification of substitute teachers to be unreasonable and arbitrary, plaintiffs appeal from an order of the Supreme Court, Kings County, dated November 15, 1976, which granted defendants' motion to dismiss the complaint on the ground that plaintiffs could only proceed pursuant to CPLR article 78 and that such a proceeding would be barred by the Statute of Limitations. Order reversed, on the law, with $50 costs and disbursements, and motion denied. Defendants' time to answer is extended until 20 days after entry of the order to be made hereon. On July 30, 1975 the defendant-respondent Board of Education of the City of New York amended section 521 of its by-laws to establish a new class of employee, the "occasional per diem substitute". This new class receives a lesser rate of pay and is not entitled to certain benefits received by those substitute teachers not considered "occasional". The complaint alleges that the amendment is unconstitutional as there is no reasonable relationship between the classification of certain substitute teachers as "occasional" and of other substitute teachers as regular. An action for a declaratory judgment is an appropriate remedy for challenging the constitutionality of an amendment to an administrative by-law (cf. Matter of Foy v Schechter, 1 N.Y.2d 604; Lutheran Church in Amer. v City of New York, 27 A.D.2d 237; Nelson v Board of Higher Educ., 263 App. Div. 144, affd 288 N.Y. 649). Martuscello, J.P., Latham, Margett and O'Connor, JJ., concur.