The situation which confronts us is essentially one of a ¡summary termination of a tenured teacher’s employment. It is significant that petitioner’s employment was terminated by the appellant school board on February 19, 1973 while the board’s application for disability retirement was still pending. Thus, Matter of Balash v. New York City Employees’ Retirement System (34 N Y 2d 654) is distinguishable as the employee there was involuntarily retired by the Retirement System.
Appellant contends that such termination is permissible because there, is no factual dispute as to respondent’s disability—blindness. This argument rests on the unsound premise that blindness per se is sufficient grounds for termination via involuntary disability retirement. The legislative policy, dearly expressed in section 3004 of the Education Law, is to the contrary and dictates that blindness in and of1 itself shall not disqualify an otherwise qualified teacher from employment. There would be no sense in providing that a person be not prevented from qualifying for a position as a teacher solely by reason of blindness if his or her services as a teacher could later be terminated merely because of that blindness.
Thus, in order to terminate respondent’s employment on grounds of disability, the appellant must demonstrate that he is incapacitated for the performance of duty (Education Law, *167§ 511, subd. 1).* This contemplates -a hearing prior to termination to be afforded by the school board, at least where the board and the employee on whose behalf the retirement application is filed- have “ sharply divergent interests” (Snead v. Department of Social Servs. of City of N. Y., 355 F. Supp. 764, 773 [S. D. N. Y., 1973], app; pending 42 U. S. L. W. 3034 [Doc. No. 72-1617]; see Matter of Balash v. New York City Employees’ Retirement System, supra).
Nothing related herein exempts the Retirement Board from its separate statutory duty to determine eligibility for retirement at the appropriate time upon the required reports, accordingly as it determines the question of fact of disability (Matter of Fitzpatrick v. New York State Teachers’ Retirement Bd., 212 App. Div. 760, affd. 241 N, Y. 515). .
Heblihy, P. J., Staley, Jb., and Sweeney, JJ., concur; Cooke, J., concurs in a separate opinion.
Judgment and order modified, on the law and the facts, by reversing so much thereof as declared a portion of subdivision 1 of section 511 of the Education Law unconstitutional, and, as so modified, affirmed, without costs.
In order to meet its burden, appellant must prove more than a mere inability to perform ministerial acts incidental to teaching duty, e.g., taking attendance (see Matter of Chavich v. Board of Examiners of Bd. of Educ. of City of N. Y., 23 A D 2d 57, 67-68 [dissenting opn. per Rabin, J.], affd. 16 N Y 2d 810). Were these disabilities, which flow directly from the fact of blindness itself, sufficient to warrant termination, the protection afforded by section 3004 would be illusory (see N. Y. Legis. Annual, 1971, pp. 154, 558).