Murphy v. Board of Educ., North Bellmore Union Free School Dist.

• Decision Date: 01 October 1984
• Citation: 480 N.Y.S.2d 138,104 A.D.2d 796
• Parties: , 20 Ed. Law Rep. 673 Jean MURPHY, Respondent, v. BOARD OF EDUCATION, NORTH BELLMORE UNION FREE SCHOOL DISTRICT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 138

480 N.Y.S.2d 138

104 A.D.2d 796, 20 Ed. Law Rep. 673

Jean MURPHY, Respondent, v. BOARD OF EDUCATION, NORTH BELLMORE UNION FREE SCHOOL DISTRICT, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 1, 1984.

Cooper, Englander & Sapir, P.C., Mineola (William H. Englander and David M. Cohen, Mineola, of counsel), for appellant.

James R. Sandner, New York City (Noel D. Cohen, New York City, of counsel), for respondent.

Before THOMPSON, J.P., and BRACKEN, BOYERS and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78, inter alia, to compel the Board of Education, North Bellmore Union Free School District, to "recall" petitioner to a teaching position, the board of education appeals from a judgment of the Supreme Court, Nassau County, entered October 12, 1983, which granted the petition.

Judgment reversed, on the law, with costs, and proceeding dismissed on the merits.

On June 30, 1975, petitioner was excessed from her teaching position with the North Bellmore Union Free School District. At that time, subdivision 3 of section 2510 of the Education Law provided that persons such as petitioner were to be placed on a preferred recall list for a period of four years, commencing from the date they were excessed. In 1977, section 2510 was amended to extend an excessed teacher's eligibility on a recall list to a six-year period (L.1977, ch. 790). Accordingly, petitioner remained on the recall list for six years, until June 30, 1981. By letter dated July 1, 1981, petitioner was notified that her placement on the preferred eligibility list had expired.

In the spring of 1981, an amendment to section 2510 was introduced to extend an excessed teacher's preferred status to seven years. This amendment was adopted by the Assembly on June 4, 1981 and the Senate on July 2, 1981. It was signed into law on July 27, 1981, and, by its terms, it became effective "immediately".

In August, 1981, vacancies arose for teaching positions in petitioner's tenure area in the appellant school district. Petitioner was interviewed, but she was not offered a position. While one of the teachers hired at this time was in the same position as petitioner, i.e., had been excessed on June 30, 1975, the other, apparently, was not. Petitioner then commenced this article 78 proceeding and claimed entitlement to one of the positions on the ground, inter alia, that the amendment to subdivision 3 of section 2510 took effect retroactively and extended her preferred status one year, until June 30, 1982. Special Term agreed, and held that the amendment should be accorded limited retroactivity to protect those teachers whose six years of preferred status had just lapsed at the time the amendment took effect. Special Term concluded that a proper application of the amendment meant that petitioner's placement on the preferred eligibility list should have been continued until seven years from the date she was originally placed on the list, i.e., until June 30, 1982. Because one of the teachers hired after June 30, 1981 was not on the preferred list, Special Term held that petitioner had a right to that position and, therefore, directed that she be reinstated with back pay and credits for seniority and retirement as if she had been appointed for the 1981-1982 school year. We now reverse.

The 1981 amendment to subdivision 3 of section 2510, extending an excessed teacher's preferred status to seven years, by its clear and explicit terms became effective "immediately", and this occurred when the amendment was signed into law on July 27, 1981. Although we are sympathetic to petitioner's plight, the unfortunate fact is that she lost her preferred status several weeks prior to the enactment of the amendment. As a general rule statutes are to be construed as prospective only in the absence of an unequivocal expression of a legislative intent to the contrary, and where a statute directs that it is to take effect immediately, it does not have any retroactive operation or effect (McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 51, subd. b). Courts must avoid judicial legislation even if they believe there are errors or omissions in the legislation (McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 73). Accordingly, the proceeding is dismissed.

THOMPSON, J.P., and BRACKEN and LAWRENCE, JJ., concur.

BOYERS, J., dissents and votes to affirm the judgment, with the following memorandum.

BOYERS, J. (dissenting).

Certainly, it is a primary rule of statutory construction that a law or an amendment thereto is to be given prospective rather than retroactive effect (McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 51, subd. b; see Kinney v. Kinney, 48 A.D.2d 1002, 369 N.Y.S.2d 258). As a general rule, therefore, a law will not be considered retroactive unless an intention to make it retroactive is adduced from its wording (McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 51, subd....