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Dietz v. Bd. of Educ. of Rochester City Sch. Dist.

Supreme Court, Appellate Division, Fourth Department, New York.
Sep 28, 2012
98 A.D.3d 1251 (N.Y. App. Div. 2012)

Opinion

2012-09-28

In the Matter of Thomas DIETZ, Petitioner–Appellant, v. BOARD OF EDUCATION OF ROCHESTER CITY SCHOOL DISTRICT, Jean–Claude Brizard, Superintendent, Rochester City School District, Rochester City School District and Emede Ozuna, Respondents–Respondents.

Richard E. Casagrande, Latham (James D. Bilik of Counsel), for Petitioner–Appellant. Charles G. Johnson, Rochester (Michael E. Davis of Counsel), for Respondents–Respondents.



Richard E. Casagrande, Latham (James D. Bilik of Counsel), for Petitioner–Appellant. Charles G. Johnson, Rochester (Michael E. Davis of Counsel), for Respondents–Respondents.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.



MEMORANDUM:

Petitioner commenced this CPLR article 78 proceeding seeking reinstatement of his employment with respondent Rochester City School District (District). Supreme Court denied the petition, and we affirm.

Petitioner contends that, based on the counseling and other social work duties he performed as a “school instructor/transition counselor” in the District's Incarcerated Youth Program, he was entitled to seniority rights within the “special subject tenure area” (tenure area) of school social worker pursuant to the Rules of the Board of Regents (8 NYCRR 30–1.8[b][9]; see8 NYCRR 30–1.1 et seq.). He further contends that, inasmuch as he was not the person with the least seniority within that tenure area at the time his position was abolished, the District violated Education Law § 2585(3) in terminating his employment. We reject those contentions.

At the outset, we note that the relief requested in the petition is in the nature of mandamus to compel ( see Matter of Gallagher v. Board of Educ. for Buffalo City School Dist., 81 A.D.3d 1408, 1409, 917 N.Y.S.2d 473;Matter of Dorsey v. Coleman, 40 A.D.3d 1187, 1187–1188, 834 N.Y.S.2d 743;Matter of Curtis v. Board of Educ. of Lafayette Cent. School Dist., 107 A.D.2d 445, 446–447, 487 N.Y.S.2d 439;see generally Matter of De Milio v. Borghard, 55 N.Y.2d 216, 220, 448 N.Y.S.2d 441, 433 N.E.2d 506), and the applicable standard of review is thus whether petitioner established “a ‘clear legal right’ to the relief requested” (Matter of Council of City of N.Y. v. Bloomberg, 6 N.Y.3d 380, 388, 813 N.Y.S.2d 3, 846 N.E.2d 433;see Matter of Henriquez v. New York State Dept. of Correctional Servs., 61 A.D.3d 1191, 1192, 876 N.Y.S.2d 774). Here, the collective bargaining agreement (CBA) between the District and the union representing petitioner provided that layoffs of “school instructors” would be affected within the four separate categories of school instructors identified in the CBA rather than within tenure areas; that separate seniority lists for purposes of layoffs are maintained for school instructors; and that, “[i]n the event that positions are abolished, school instructors shall not have rights to displace teachers in regular school programs having less seniority, nor shall teachers have rights to displace school instructors having less seniority.” We conclude that, by accepting employment as a school instructor and entering into the CBA as a result of his membership in the union, petitioner waived any right to be credited for seniority in the tenure area of school social worker ( see Antinore v. State of New York, 49 A.D.2d 6, 10–11, 371 N.Y.S.2d 213,affd.40 N.Y.2d 921, 389 N.Y.S.2d 576, 358 N.E.2d 268;Matter of Wiener v. Board of Educ. of E. Ramapo Cent. School Dist., 90 A.D.2d 832, 833, 455 N.Y.S.2d 828,appeal dismissed58 N.Y.2d 1115;cf. Board of Educ., Lakeland Cent. School Dist. of Shrub Oak v. Lakeland Fedn. of Teachers, Local 1760, Am. Fedn. of Teachers, AFL–CIO, 51 A.D.2d 1033, 1034, 381 N.Y.S.2d 515). Thus, the court properly denied the petition.

In view of our determination, we do not address respondents' contention with respect to an alternative ground for affirmance.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.


Summaries of

Dietz v. Bd. of Educ. of Rochester City Sch. Dist.

Supreme Court, Appellate Division, Fourth Department, New York.
Sep 28, 2012
98 A.D.3d 1251 (N.Y. App. Div. 2012)
Case details for

Dietz v. Bd. of Educ. of Rochester City Sch. Dist.

Case Details

Full title:In the Matter of Thomas DIETZ, Petitioner–Appellant, v. BOARD OF EDUCATION…

Court:Supreme Court, Appellate Division, Fourth Department, New York.

Date published: Sep 28, 2012

Citations

98 A.D.3d 1251 (N.Y. App. Div. 2012)
951 N.Y.S.2d 306
2012 N.Y. Slip Op. 6412

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