I respectfully dissent. The question in the instant proceeding is whether the adjudication of the earlier proceeding by the Second Department (Matter of Fogel v Board of Educ., 48 AD2d 925) is a bar *1012under principles of res judicata to a consideration of the issues raised by petitioner in this proceeding. We must address ourselves, in a resolution of this matter, to whether or not the exact questions posed herein were litigated and determined in the prior action. In the original proceeding petitioner set forth several grounds for annulling the board’s determination. These included (1) the evidence adduced at the hearing was insufficient to support a finding of guilt; (2) the charges were motivated by malice, in an attempt to discredit petitioner; (3) petitioner was denied due process in that (a) the board did not give reasons for its decision, (b) the board did not state the facts upon which it based its decision, (c) the trial examiner’s report was not made available to petitioner and, thus, she was unable to respond thereto, (d) the charges leveled against her were vague and overbroad; (4) highly prejudicial evidence was admitted; (5) the board failed to follow its own regulations; and (6) the punishment of discharge was excessive. The Second Department annulled the determination of the board which had found petitioner guilty of improper conduct and which had dismissed petitioner from further service. The matter was then remitted to the board with directions to permit petitioner to respond to the trial examiner’s report. The court also stated that it had considered the petitioner’s other contentions and found them to be without merit. The commissioner rejected the contentions of the petitioner that the board’s determination "was not supported by substantial evidence, that the penalty was excessive, that the charge was vague and indefinite * * * and that petitioner was not given a fair hearing”. It was his opinion that these issues had already been resolved. Special Term held that the commissioner properly applied the doctrine of res judicata. It is evident that the Second Department in annulling the determination of the board and in its dismissal of the petition repudiated the finding of substantial evidence. If this question were already established there would have been no reason to remit the matter. Absent a finding of substantial evidence to support the charges, a decision on the excessiveness of the sentence was likewise impossible. To be noted, also, is that the record before Special Term in the instant proceeding differs from the record before the Second Department. The "other contentions” disposed of by the Second Department as to which its judgment is final referred to the issues of whether the charges were vague and overbroad, whether prejudicial evidence had been admitted and whether the board failed to follow its own regulations. The determination should be annulled and the matter should be remitted to the commissioner for a determination on the merits. Accordingly, the judgment should be reversed.