Zurlo v. Ambach

Appeal from a judgment of the Supreme Court at Special Term, entered August 30, 1979 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Commissioner of Education. Petitioner is a tenured physical education teacher employed by the Medina Central School District. When his position was reduced to half-time status for the 1976-1977 school year, his name was placed on a list of preferred eligibles "for appointment to a vacancy * * * that may thereafter occur in an office or position similar to the one which such person filled” (Education Law, § 2510, subd 3). In April of 1978, a full-time physical education teacher submitted a resignation which was to become effective at the end of that school year. The respondent board of education thereafter resolved to create two three-quarter-time physical education positions and offered one of them to petitioner. Although he accepted the offer, petitioner challenged the board’s action through an appeal to the respondent Commissioner of Education in which he asserted that he was entitled to an appointment to a full-time position. The commissioner determined that petitioner failed to demonstrate arbitrary or illegal action on the part of the board and dismissed his appeal. Special Term found that the commissioner’s determination was rational and dismissed *663petitioner’s subsequent article 78 proceeding. We now affirm its judgment. Petitioner’s right to an appointment pursuant to subdivision 3 of section 2510 of the Education Law is wholly dependent on the existence of a "vacancy” and the record makes it plain that the only openings to which he might aspire were the newly created three-quarter-time posts. The board’s resolution was so designed and structured that no full-time vacancy ever arose. Accordingly, as his appeal to the commissioner ultimately reflected, petitioner’s statutory claim rests on the proposition that the board should have continued its former staffing pattern into the 1978-1979 school year. The board maintained that its action would eliminate certain cross town travel and result in more efficient teacher utilization. Petitioner questioned the validity of those reasons and submitted proposed schedules purporting to demonstrate that the same objectives could be accomplished without establishing three-quarter-time positions. However, the commissioner accepted the board’s explanation and, on the record presented to him, we fail to discover any error. Petitioner simply failed to prove that the board had not acted in good faith and with reasonable judgment (cf. Matter of Lezette v Board of Educ., 35 NY2d 272, 278; Matter of Young v Board of Educ., 35 NY2d 31). Although his arguments before Special Term were more refined, petitioner has not shown that the board’s resolution was directed at him personally for improper motives, or that the commissioner lacked a rational basis for his decision upholding the board. Judgment affirmed, without costs. Greenblott, J. P., Kane, Staley, Jr., and Main, JJ., concur.