SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU. Petitioner,

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1 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. DANIEL PALMIERI Justice Supreme Court x ROBERT A-MICHELE JODRE, -against- Petitioner, LOCUST VALLEY CENTRAL SCHOOL DISTRICT and ANNA F. HUNDERFUND, in her Official Capacity as District Superintendent of the Locust Valley Central School District, Respondent x MOb) TRIAL TERM PART: 45 INDEX NO. : /10 MOTION DA TE:I0-12- SUBMIT DATE: SEQ. NUMBER MOTION DATE: 11- SUBMIT DATE: SEQ. NUMBER The following papers have been read on this motion: Amended Notice of Petition, dated Notice of Motion, dated Affirmation in Support of Motion, dated Memorandum of Law in Support, dated Affirmation in Opposition, dated Reply Memorandum, dated This is a proceeding pursuant to CPLR Article 78 for reinstatement to petitioner former position as Director of Guidance Services, with back pay and all associated rights and benefits is detemlined as hereinafter provided. Respondents move to dismiss pursuant to CPLK7804(f). The motion is denied, and the respondents are directed to submit an answer in accord with this decision.

2 Petitioner challenges the termination of her employment as a tenured Director of Guidance Services at respondent Locust Valley School District (School District) effective at the close of June 30, The Board of Education voted to abolish petitioner position at a regular meeting of the Board on May based on budgetary factors. The petition is predicated on the theory that the respondent School District acted in bad faith by ilegally abolishing her position and that there was no economic justification for her termination. Rather, budgetary constraints were used as an excuse and subterfuge to remove her from her position when no grounds for removal actually existed and her removal/termination, therefore, was violative of her statutory rights as a tenured administrator. In sum, Petitioner alleges that the respondent School District abolished her position in order to accomplish the ilegal objective of firing her. After her position was abolished, petitioner maintains that her duties were divided among less senior employees, and that new positions, which included duties similar to her fonner duties, were created despite the respondent School District' s claims of budgetary constraints. She, however, was not appointed to any of the newly created positions. Petitioner further alleges that the respondent School District posted a job opening for a new position entitled "Assistant Principal" with job responsibilities allegedly almost identical to those of her abolished position. As an initial matter, the court notes that petitioner s prior appeal (No ) to the Commissioner of Education, wherein she challenged the relocation of her office and modification of her duties by the respondent School District, was dismissed as untimely. In his decision dated October 8, 2010, the Commissioner held, however, that even if the

3 appeal were timely, it would have been dismissed based on his finding that: "(a) board of education has broad discretion in assigning members of its professional staff, so long as the employees ' tenure rights are not infringed", and that although petitioner was dissatisfied "with the modification of her job responsibilities.... she "was assigned to duties consistent with (her) tenured position;" and "changes and assignments are permissible provided the assignments are within the same tenure area. The Commissioner further stated that " (a) school board' s decision to reassign a tenured employee based on the district's educational needs does not constitute discipline for which procedural due process must be provided under Education Law a, as long as the employee s rights are not infringed. On this pre-answer motion, the respondents seek dismissal of the petition predicated on the doctrine of primary jurisdiction. They argue that the matter " turn ( s) on whether a full-time position of Director of Guidance Services is ' similar' to the Assistant Principal position within the meaning of the Education Law. " Moreover, the respondent School District contends that the Commissioner of Education is in the best position, by virtue of his expertise and specialized understanding of tenure areas and school district operations, to resolve the issues raised by the petition at bar which implicates Education Law 93013(1) and (2) which provide as follows: If a trustee, board of trustees, board of education or board of cooperative educational services abolishes an office or position and creates another office or position for the performance of duties similar to those performed in the office or position abolished, the person filling such office or position at the time of its abolishment shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he or she has filled.

4 Whenever a trustee, board of trustee, board of education or board of cooperative educational services 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. Under the doctrine of primary jurisdiction, even though a claim is cognizable in the judicial forum, a court wil refrain from exercising jurisdiction if it involves a question within the jurisdiction of an administrative agency, and its determination depends upon the specialized knowledge and experience of that agency. Matter of de Vente Board ofeduc. 15 AD3d (3 Dept. 2005) (citation and internal quotation marks omitted). The doctrine is intended to coordinate the relationship between the courts and administrative agencies so that the agency s views on factual and technical issues are made available where the matter before the court is within the agency s specialized field. Matter of Markow-Brown Bd. of Educ. Port Jefferson Public Schools 301 AD2d (2 Dept. 2003), Iv to app den. 100 NY2d 512 (2003). When an Article 78 petition is dismissed pursuant to this doctrine, the court retains primary jurisdiction but allows the agency to determine the issue in the first instance based on its technical expertise. Matter of Madison- Oneida Bd. of Co-op. Educational Services Mils 4 NY3d (2004). Once the agency has ruled, a party who is aggrieved by the agency s decision may bring an Article 78 proceeding to annul the agency s determination (Jd.). Notwithstanding respondent School District's contentions to the contrary, the petitioner s primary claims that the elimination of her position for budgetary reasons was a subterfuge to deprive her of the statutory protections of Education Law and

5 , are not issues solely 3020-a, and the termination of her employment was in bad faith within the special competence of the Commissioner of Education. It is settled law that a public employer may, in the absence of bad faith collusion or fraud, abolish a civil service position for reasons of economy or efficiency. Matter of Civil Service Employees Ass ' n, Inc., Local) 000, AFSCME, AFL- CIO Bd. of Co-op. Educational Services 39 AD3d (2 Rockland County Dept. 2007). Just as in the case of the Civil Service Law, under which a municipality may not abolish a position by subterfuge, a school board is bound by the provisions of the Education Law 93012(2)) and may not abolish a position by subterfuge to avoid the statutory protections afforded tenured teachers. Matter of Awaraka Board ofeduc. of City of New York 59 AD3d 442 (2 Dept. 2009); Matter of Weimer Board of Ed., Smithtown Central SchooIDist., No., 74 AD2d 574, 575 (2nd Dept. 1980). One who challenges the validity of such an act has the burden of proving that the employer did not act in good faith in abolishing the position. Matter of Lamb Town of Esopus 35 AD3d 1004, 1005 (3 Dept. 2006); Matter of Della Vecchia Town of North Hempstead 207 AD2d (2 Dept. 1994), Iv to app den. 84 NY2d 812 (1995). Bad faith may be demonstrated by evidence that a newly hired person performed substantially the same duties as the discharged employee. Matter of Civil Service Employees Ass, Inc., Local IOOO, AFSCME. AFL- CIO Rockland County Bd. of Co-op. Educational Services, supra at p It is, therefore, for the Court to determine whether petitioner s position was abolished in bad faith. If it was, petitioner is entitled to reinstatement. If it was not, then the ancilary issues of seniority, tenure, job similarities and recall rights become relevant

6 // and are properly referred to the Commissioner of Education pursuant to the doctrine of primary jurisdiction. Matter of Verdon Dutchess County Bd. of Co-op. Educ. Services 47 AD3d (2 Dept. 2008). Accordingly, the motion to dismiss is denied and pursuant to CPLR 7804(f) the respondents shall submit an answer within 20 days of service upon them of a copy of this order with notice of entry thereof. The petitioner may re-notice her petition in accord with this section, or as agreed between counsel, or by direction of the Court. This Court notes that because of a change in its assignment as directed by the Administrative Judge of the County of Nassau, this matter wil be reassigned to another Justice of this Court. This shall constitute the Decision and Order of this Court. DATED: January ENTER U() M-U HON. DANIEL PALMIERI Supreme Court Justice TO: Law Offices of Louis D. Stober, Jr., LLC By: Alyssa F. Bomze, Esq. Attorneys for Petitioner 350 Old Country Road Ste. 205 Garden City, NY Bond, Schoeneck & King, PLLC Attorneys for Respondents 1399 Franklin Avenue, Ste. 200 Garden City, NY ENTJ:RED JAN NASSAU COUNTY COUNTY CLERK' OFFICE