I dissent for the reasons stated by *64Mr. Justice Greenblott in his dissent in the Appellate Division (55 AD2d 751, 752) and in my dissent in Matter of Chauvel v Nyquist (43 NY2d 48, decided herewith), with the following additional comments (see, also, Matter of Lynch v Nyquist, 41 AD2d 363, affd 34 NY2d 588).
The facts of this case are quite similar to those in Matter of Steele v Board of Educ. (53 AD2d 674, affd 42 NY2d 840). There, as here, the petitioner was a teacher certified to teach one foreign language and had the least seniority in that subject when the board sought to abolish her position due to decreased enrollment in language courses. The principal difference is that there petitioner was seeking to avoid dismissal whereas here petitioner was seeking reinstatement.
In Steele (supra) it was held that a board of education may be required, where possible, to rearrange a teaching schedule to find a position in the area of certification of a tenured teacher who might otherwise be dismissed. There is no justification for not similarly adjusting schedules to allow a tenured teacher such as petitioner to be reinstated to a vacancy over one with less seniority. The fact that petitioner sought reinstatement to a position for which she was not certified rather than seeking a rearrangement of the teaching schedule, or that she did not seek to assert any rights she may have had under subdivision 2 of section 2510 of the Education Law, should not be of significance to her request for relief. "The tenure statutes are intended to protect the teacher and not become a trap to those not guileful enough to avoid it” (Matter of Baer v Nyquist, 34 NY2d 291, 299).
Accordingly, in this matter there should be a determination of whether it was possible to adjust the teaching schedule to allow petitioner to be reinstated to teach in an area in which she was certified.
Chief Judge Breitel and Judges Jasen, Jones and Wachtler concur with Judge Gabrielli; Judge Cooke dissents and votes to reverse in a separate opinion in which Judge Fuchs-berg concurs.
Order affirmed.