Applying the Doctrine of Primary Jurisdiction
Marsico v Armstrong, 2013 NY Slip Op 07487, Appellate Division, Second Department
Education Law §2510(2) provides that “Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued [emphasis supplied].*
The Board of Education abolished Business Education teacher positions in accordance with Education Law §2510(2) and then established a preferred eligible list pursuant to Education Law §2510(3) for use in the event a vacancy became available and the Board elected to fill the position.
Donna Marsico was granted tenure as a Business Education teacher by the Board effective September 1, 1994. Upon the abolishment of her positions, the Board placed Marsico’s name on the appropriate preferred list as “the most senior teacher for rehiring purposes.” The Board, however, later concluded that Marsico’s service with the school district as an Adult Education teacher from 1993 to 2007 should not have been considered in determining her seniority for placement on the preferred list.
The Board then adopted a resolution establishing a new preferred eligible list listing the names of two other teachers as having greater seniority in the tenure area than Marsico. One of those teachers was later appointed from the preferred list.
Marsico filed a petition pursuant to CPLR Article 78  seeking a review of the resolution establishing the new preferred eligible list,  seeking an order to compel the Board to restore “her reinstatement rights pursuant to the initial preferred eligible list” and  directing the Board to appoint her to the position to which the other teacher had been appointed.
The Board moved to dismiss Marsico’s petition based upon the doctrine of primary jurisdiction.** Supreme Court granted the Board’s motion to the extent that it “stayed the proceeding and referred the matter to the Commissioner of Education”
The Commissioner subsequently decided Marisco’s administrative appeal challenging the Board's several determinations and agreed with the Board, dismissing her administrative appeal on the merits. [Decisions of the Commissioner of Education, Decision 16,158].***
The Supreme Court then denied Marisco’s petition and dismissed the proceeding.
The Appellate Division reversed the Supreme Court’s ruling explaining that “Under the particular circumstances of this case, the Supreme Court either should have dismissed the petition upon the [Board’s] motion, pursuant to the doctrine of primary jurisdiction or, upon the Commissioner's determination of the administrative appeal, should have permitted Marsico to amend her petition so as to seek review of the Commissioner's determination and to join the Commissioner as a party.”
As Supreme Court elected to await the Commissioner's determination rather than dismiss the petition, the Appellate Division remitted the matter Supreme Court “to permit Marsico to amend her petition and join the Commissioner as a party and, thereafter, for a determination of the amended petition.”
* In contrast, in the event positions in the competitive class in the classified service are abolished [educators are in the unclassified service], §80.1 of the Civil Service Law provides that the incumbents of such positions shall be laid off “in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition positions occurs [emphasis supplied]. §80-a(1) of the Civil Service Law so provides for employees in the noncompetitive class employed by the State as the employer[emphasis supplied].
** The doctrine of primary jurisdiction may be applied by a court in order to permit an administrative agency an initial opportunity to decide an issue in a case in which the court and the agency have concurrent jurisdiction.
*** The Commissioner's decision is posed on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16158.htm
The Appellate Division's decision is posted on the Internet at:
The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html