The letter does not describe the time frame in which this information was available, nor does it state that Leister herself could have taken or did take advantage of the information. Stating that other teachers joined the system, without explaining the source of their knowledge, their similarity to Leister or time they joined is also insufficient to create a rational basis for denial ( Matter of Gregory v Bemus Point Cent. School Dist., 237 A.D.2d ___, 1997 N.Y. Slip Op 02331 [4th Dept, Mar. 14, 1997]). Kaufman: In denying Kaufman's claim, Jericho relied on employment forms she filled out each year as a substitute teacher which contained the question "Are you at present a member of the New York State Teachers' Retirement System?
is eligible for retroactive membership in the New York State Teachers' Retirement System. Contrary to the Supreme Court's conclusion, the respondents' vague and conclusory allegations that at the time the petitioner was hired a standard practice existed to inform new part-time and substitute teachers of their right to join the New York State Teachers' Retirement System (hereinafter the Retirement System) were insufficient to demonstrate a rational basis for the respondents' determination that the petitioner participated in a procedure by which she was advised of her right to join and is ineligible for retroactive membership (see, Retirement and Social Security Law ยง 803 Retire. Soc. Sec.[b][3][iii]; Matter of Scanlan v. Buffalo Pub. School Sys., 90 N.Y.2d 662; Matter of Spector v. Board of Educ. of Yonkers City School Dist., 251 A.D.2d 588; Matter of Hickey v. BOCES of Rockland County, 250 A.D.2d 768; Matter of Dapp v. Board of Educ. of Yonkers City School Dist, 248 A.D.2d 712, 713;Matter of Gregory v. Bemus Point Cent. Sch. Dist., 237 A.D.2d 887). One document which indicates that the petitioner had "opt[ed]" not to join the Retirement System is undated and unsigned, and contains no specific indication that the petitioner was informed of her options at the time that she commenced her employment (see,Retirement and Social Security Law ยง 803[b]; Matter of Scanlan v. Buffalo Pub. School Sys., supra; Matter of Kendall v. Board of Educ. of S. Orangetown Cent. School Dist., 253 A.D.2d 496). Another document, which the petitioner signed in 1976, was a written acknowledgment of her right to join the system, and indicated that she elected not to join at that time.
In support of its determination rejecting petitioner's claim, respondent made the conclusory finding that a handbook explaining to employees their rights concerning TRS was readily available to respondent's employees at the time of petitioner's employment. That ground is insufficient to rebut petitioner's proof ( see, Matter of Van Antwerp v. Board of Educ., 247 A.D.2d 676; Matter of Sadoff v. Ithaca City School Dist., 246 A.D.2d 861, lv denied 92 N.Y.2d 805; Matter of Gregory v. Bemus Point Cent. School Dist., 237 A.D.2d 887, 888-889). The court erred in relying on an affidavit submitted by respondent setting forth new grounds for its denial of petitioner's claim.
In its finding that petitioner participated in a procedure which a reasonable person would recognize as an explanation or request requiring a formal decision of whether to join the TRS, respondent relied upon the affidavits of two former employees who indicated that each newly hired substitute teacher was required to seek the assistance of the finance office to complete payroll forms and was asked whether he or she was a member of the TRS and, if not, whether he or she wanted to become a member. Petitioner, however, submitted statements of substitute teachers hired at approximately the same time as petitioner which established that similarly situated teachers did not participate in any procedure providing them with an opportunity to become a member of the TRS. Respondent has submitted no evidence to contradict these statements or to support its proposition that similarly situated teachers participated in such a procedure ( see, Matter of Gregory v. Bemus Point Cent. School Dist., 237 A.D.2d 887, 888-889; compare, Matter of Plasberg v. State of New York, 245 A.D.2d 681). Contrary to respondent's contention, the fact that the TRS retirement number on petitioner's application form was blank did not establish that petitioner made a decision to decline membership in the TRS, especially in light of the fact that petitioner had no prior experience with the TRS ( see, Matter of Cleary v. Board of Educ., 243 A.D.2d 949, 950-951).
The burden then shifted to the School District to demonstrate otherwise. The vague and conclusory statements by the School District employees that procedures to inform about eligibility to join the Retirement System were in place at the time the petitioner was hired are insufficient to meet this burden ( see, Matter of Scanlan v. Buffalo Pub. School Sys., supra; Matter of Gregory v. Bemus Point Cent. School Dist., 237 A.D.2d 887; Matter of Candrea v. Board of Educ., 236 A.D.2d 536). Mangano, P. J., Bracken, Copertino and Santucci, JJ., concur.
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 ยง 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.