Certification to teach in the position sought critical to teacher’s reinstatement from a preferred list following his or her layoff
2015 NY Slip Op 04492, Appellate Division, Second Department
A teacher [Teacher] certified to teach Spanish, was appointed as a foreign language teacher in the school district’s elementary school. Teacher taught Spanish and acquired tenure in that position.
The school board [Board] subsequently abolished the elementary school Spanish teacher position for economic reasons and Teacher’s name was placed on a "preferred eligible list" for appointment to any vacancy which may arise in a similar position within seven years from the date that her position was abolished as provided by Education Law §§2510[3][a]; 3013[3][a]).
In 2011, the Board of Education created a new a full-time position of "French/Spanish Teacher 7-12" and appointed an individual who was certified to teach both French and Spanish to fill that vacancy.
Teacher commenced a CPLR Article 78 in the nature of mandamus to compel the Board to appoint her to a position of part-time Spanish teacher.
Teacher argued that the Board, in effect, had created "a teaching position that is [part-time] Spanish and [part-time] French," and that she was entitled pursuant to Education Law §§2510(3)(a) and 3013(3)(a) to be appointed to the purported part-time Spanish teacher position.
Supreme Court denied the petition and dismissed the proceeding on the merits and Teacher appealed.
The Appellate Division affirmed the Supreme Court’s action, explaining that "[CPLR] Article 78 relief in the form of mandamus to compel may be granted only where a petitioner establishes a clear legal right to the relief requested." In determining whether Teacher is entitled to re-employment pursuant to Education Law §§2510 or 3013 in this action, "the threshold question must be one of certification to teach in the position sought. Absent such certification, re-employment rights cannot attach."
Noting that Teacher did not challenge the propriety of the Board's decision to create a single full-time position encompassing instruction of both French and Spanish, the Appellate Division ruled the her “claim must fail because, as [Teacher] conceded, she lacks the dual certification necessary for [appointment to] the full-time position.”
Thus, held the Appellate Division, as Teacher “failed to demonstrate a clear legal right to the relief sought,” the Supreme Court properly denied the petition and dismissed the proceeding on the merits.
The decision is posted on the Internet at:
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