DIETZ, THOMAS v. BD OF EDUCATION OF ROCH CITY SCHOOL ( 2012 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    874
    CA 12-00312
    PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
    IN THE MATTER OF THOMAS DIETZ,
    PETITIONER-APPELLANT,
    V                             MEMORANDUM AND ORDER
    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.
    Appeal from a judgment (denominated order) of the Supreme Court,
    Monroe County (Ann Marie Taddeo, J.), entered April 19, 2011 in a
    proceeding pursuant to CPLR article 78. The judgment denied the
    petition.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed without costs.
    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]; see 8 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 AD3d 1408, 1409;
    -2-                           874
    CA 12-00312
    Matter of Dorsey v Coleman, 40 AD3d 1187, 1187-1188; Matter of Curtis
    v Board of Educ. of Lafayette Cent. School Dist., 107 AD2d 445, 446-
    447; see generally Matter of De Milio v Borghard, 55 NY2d 216, 220),
    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 NY3d 380, 388; see Matter of
    Henriquez v New York State Dept. of Correctional Servs., 61 AD3d 1191,
    1192). 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 AD2d 6, 10-11, affd 40 NY2d 921;
    Matter of Wiener v Board of Educ. of E. Ramapo Cent. School Dist., 90
    AD2d 832, 833, appeal dismissed 58 NY2d 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 AD2d 1033, 1034).
    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.
    Entered:   September 28, 2012                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 12-00312

Filed Date: 9/28/2012

Precedential Status: Precedential

Modified Date: 10/8/2016