Price v. Board of Education , 690 N.Y.S.2d 764 ( 1999 )

—Peters, J.

Appeal from a judgment of the Supreme Court (Lament, J.), entered January 21, 1998 in Albany County, which granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Board of Education, Dunkirk City School District denying petitioner’s request for retroactive membership in respondent New York State Teachers’ Retirement System.

Although petitioner commenced her work as a part-time substitute teacher with the Dunkirk City School District (hereinafter the District) in 1969, she became eligible for membership in respondent New York State Teachers’ Retirement System (hereinafter the TRS) when she worked more than 20 days in each year, commencing in 1971 and ending in 1977, with the exception of the 1973-74 school year. In 1976, petitioner first joined the TRS and has continuously remained a member. After 1977, she worked in several other school districts as a substitute teacher until 1983 when she was hired, full-time, by the Silver Creek Central School District.

In 1996, pursuant to Retirement and Social Security Law § 803, petitioner applied for retroactive membership in the TRS, which was denied by the District. Pursuant to a review hearing conducted by the Superintendent of Schools, petitioner’s application was again denied and, subsequently, that determination was affirmed by respondent Board of Education, Dunkirk City School District (hereinafter the Board). Petitioner thereafter commenced this CPLR article 78 proceeding to annul the Board’s determination. After joinder, the Board moved to dismiss the petition for failure to state a cause of action as had both the TRS and respondent New York State Teachers’ Retirement Board (hereinafter collectively referred to as the State respondents). Supreme Court granted petitioner’s application, reasoning that the Board’s determination was affected by an error of law, was arbitrary and capricious and without a rational basis. The Board appeals.¹

It is undisputed that petitioner established prima facie that she did not “participate in a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision by * * * her to join [the TRS]” (Retirement and Social Security Law § 803 [b] [3] [iii]), nor declined to do so when first employed by the District (id.; see, Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662, 677-678; Matter of Mahoney v Board of Educ., 256 AD2d 796; Matter of Andrasik v Board of Educ., 255 AD2d 661, lv denied 93 NY2d 801; Matter of Sadoff v Ithaca City School Dist., 246 AD2d 861, lv denied 92 NY2d 805). Hence, the sole issue for our determination is whether a rational basis exists to support the denial of petitioner’s application (see, Matter of Scanlan v Buffalo Pub. School Sys., supra; Matter of Mahoney v Board of Educ., supra; Matter of Andrasik v Board of Educ., supra). Upon our review, we find the denial amply supported.

Petitioner testified that when she initially commenced her employment with the District in 1969, she did not recall participating in any employee intake procedures yet acknowledged her signature on a W-4 form presented at the hearing. She did, however, contend that she was never informed of her right to be a member of the TRS, had not denied membership in writing and did not participate in any procedure which would have required a formal decision by her with respect to joining the TRS. In support thereof, she submitted seven affidavits and one letter from other substitute teachers who worked in the District at various times, each mirroring petitioner’s contention that they were not informed of the availability of membership in the TRS at the commencement of their employment.

In rebuttal, the District introduced the affidavit of Mary Gugino, its financial secretary from 1942 to 1976, who was responsible for payroll administration and personnel-related forms, including the W-4 form, and who averred that as a matter of routine, she would meet with new District employees to complete their paperwork and would explain to them their option of joining the TRS. This statement was supported by a job survey conducted by the Civil Service Department which recorded all of Gugino’s duties during the week of March 9 through 13, 1970 — less then four months after petitioner’s first employment date. That survey serves to corroborate Gugino’s reported practice and procedure with all new District employees since it details that she had, in fact, provided such an explanation concerning the availability of membership in the TRS with another new employee.

Additionally, respondent presented the testimony of Jean Szwejbka, secretary to the District’s Supervisor of Buildings and Grounds in 1969, who confirmed Gugino’s statement that a regular part of her job was to meet with new employees and advise them of their retirement system rights. District attendance records further established that Gugino was at work on the date that petitioner was present at the District office for her new employee orientation. Moreover, petitioner’s employment records for November 1969 contained a statement, similar to that appearing in her record card for 1970, to the effect that petitioner was eligible to become a member of the retirement system but did not choose to belong.²

The affidavits submitted by petitioner were challenged at the hearing upon various grounds. Some were challenged as being from employees who had. pending claims for retroactive membership, others from persons employed outside of the time that petitioner began her work for the District, while still others alleged that the affiants were not informed of their right to join the TRS yet had employment records indicating that they were, in fact, sporadically members of the TRS during their substitute service for the District. Since these issues distill to credibility determinations which the Superintendent of Schools was permitted to resolve against petitioner (see, Matter of Andrasik v Board of Educ., supra), we find no basis to disturb them.

As we acknowledged in Matter of Andrasik v Board of Educ. (supra), the evidence presented by the District was sufficient “as a matter of law to establish that it had a district-wide policy of advising new employees of their eligibility in the TRS * * * and, therefore, had ‘a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision by * * * [petitioner] to join [the TRS]’ ” (id., at 663 [citation omitted], quoting Retirement and Social Security Law § 803 [b] [3] [iii]).

Finding a rational basis to support the determination rendered, we reverse the judgment of Supreme Court.

Mercure, Crew III and Yesawich Jr., JJ., concur.

1 . The State respondents have taken no position with respect to the merits of this appeal.

2 . Petitioner’s 1971 record card contains a similar phrase.