Peck v. Board of Ed. of City of Buffalo

• Decision Date: 15 December 1978
• Citation: 66 A.D.2d 1005,411 N.Y.S.2d 757
• Parties: In the Matter of H. James PECK, Appellant, v. BOARD OF EDUCATION OF the CITY OF BUFFALO and Eugene T. Reville, Superintendent of Schools, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 757

411 N.Y.S.2d 757

66 A.D.2d 1005

In the Matter of H. James PECK, Appellant, v. BOARD OF EDUCATION OF the CITY OF BUFFALO and Eugene T.

Reville, Superintendent of Schools, Respondents.

Supreme Court, Appellate Division, Fourth Department.

Dec. 15, 1978.

Cohen, Lombardo, Blewett, Fisher, Hite & Spandau by Donald A. Fisher, Buffalo, for appellant.

Joseph P. McNamara, Corp. Counsel by Anthony C. Vaccaro, Buffalo, for respondents.

Before MOULE, J. P., and CARDAMONE, SIMONS, DILLON and HANCOCK, JJ.

MEMORANDUM:

Petitioner brought this CPLR article 78 proceeding to set aside the determination of respondents abolishing his position as Supervisor of Vocational Education. The court below dismissed the petition as insufficient as a matter of law without a hearing on motion of respondents (CPLR 7804, subd. f).

Petitioner was employed by respondent Board of Education in 1965 as Supervisor of Vocational Education. In 1970, a new position, Supervisor of Vocational Education (Federal Projects and Equipment Purchase) was created. Petitioner did not apply for the new position and it was filled by a Mr. Pfuelb. On June 30, 1975 respondent Board of Education voted to eliminate the position of Superintendent of Vocational Education, and petitioner was terminated effective August 5, 1975. Petitioner contends that the two positions are sufficiently similar as to be in the same tenure area and that the person with the least seniority (viz., Mr. Pfuelb) should be terminated (Education Law, § 2510, subd. 2). He relies also on section 2150 (subd. 1) of the Education Law, which provides that where a new position is created which carries on the work formerly done by the position abolished the Board of Education must appoint the incumbent to the new position (see Bork v. City School Dist. of City of North Tonawanda, 60 A.D.2d 13, 400 N.Y.S.2d 241).

Petitioner attempted to pursue the grievance procedure set forth in the contract between the Board of Education and the Buffalo Council of Supervisors and Administrators, which comprises three stages: appeal to the Associate Superintendent; appeal to the Superintendent; and arbitration. The first step resulted in a finding by the Associate Superintendent that petitioner's claim was not a grievable matter and a suggestion that petitioner pursue the matter through the courts or the Commissioner of Education. A similar determination was reached by the Superintendent of Schools, who also noted that he did not think petitioner's claim had merit. The third stage, arbitration, never took place because petitioner's representative, the Buffalo Council of Supervisors and Administrators Grievance Committee, terminated its grievance action on petitioner's behalf and refused to request arbitration on the grounds that his claim lacked merit.

Thereafter, petitioner commenced the instant CPLR article 78 proceeding, in support of which he submitted a description of the duties of the new position prepared by the Board of Education, and a lengthy summary of various acts performed by petitioner as Superintendent of Vocational Education which appear to substantiate his contention that the duties of the two positions are similar. Respondents in their answer and motion to dismiss did not dispute that petitioner performed these duties, but submitted interoffice memoranda containing descriptions of both positions which seem to support their contention that the two positions are dissimilar. Petitioner has adduced sufficient proof to raise a question of fact...