                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 11, 2014                   518424
________________________________

In the Matter of ERIKA
   KWASNIK,
                    Respondent,
      v

JOHN B. KING, as Commissioner
   of Education of the State
   of New York, et al.,                     MEMORANDUM AND ORDER
                    Respondents,
      and

BOARD OF EDUCATION OF THE
   NORWICH CITY SCHOOL
   DISTRICT et al.,
                    Appellants.
________________________________


Calendar Date:   October 16, 2014

Before:   Lahtinen, J.P., Garry, Egan Jr., Lynch and Devine, JJ.

                             __________


      Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, Binghamton
(James A. Gregory of counsel), for appellants.

      Richard E. Casagrande, New York State United Teachers,
Latham (Marilyn S. Raskin-Ortiz of counsel), for Erika Kwasnik,
respondent.

                             __________


Devine, J.

      Appeal from a judgment of the Supreme Court (Melkonian,
J.), entered October 21, 2013 in Albany County, which granted
petitioner's application, in a proceeding pursuant to CPLR
article 78, to annul a determination of respondent Commissioner
                              -2-                518424

of Education denying petitioner's request to be transferred to a
position within the English tenure area in the Norwich City
School District.

      Petitioner became a tenured English teacher in the Norwich
City School District in 2004 and served in that capacity until
July 2005, when she, at the prompting of the District's interim
Superintendent, resigned her position and accepted a two-year
appointment to the position of library media specialist
(hereinafter LMS) in the District. Respondent Board of Education
of the Norwich City School District (hereinafter Board)
subsequently abolished an LMS position in 2010 and, as the least
senior LMS instructor, petitioner's employment was terminated as
a result. When the Board failed to recall petitioner to the
English tenure area, she appealed to respondent Commissioner of
Education. In that appeal, petitioner conceded that, because she
was the least senior LMS, the Board properly discharged her from
the LMS area when it abolished a position; she asserted, however,
that because she had more seniority than other teachers in the
English department, the Board's failure to return her to that
area violated the Rules of the Board of Regents.1 The
Commissioner determined that petitioner had freely and
voluntarily waived her tenure and seniority rights, upheld the
Board's decision and dismissed petitioner's appeal. Thereafter,
petitioner commenced this CPLR article 78 proceeding seeking to
annul the Commissioner's determination and to reinstate her to a
tenured English position with back pay and benefits. Supreme
Court granted the petition, prompting the Board and respondent
Superintendent of the Norwich City School District (hereinafter
collectively referred to as respondents) to appeal.


    1
        The Rules of the Board of Regents upon which petitioner
relies provide, in pertinent part, that if a position is
abolished in a particular tenure area, thereby requiring the
termination of the least senior individual in such area, where
the individual has tenure in another area, that individual "shall
be transferred to such other tenure area in which he [or she] has
greatest seniority and shall be retained in such area if there is
a professional educator having less seniority than he [or she] in
such other tenure area" (8 NYCRR 30-1.13 [c]).
                              -3-                518424

      Respondents maintain that Supreme Court erred in finding
that the termination of petitioner's employment was arbitrary and
capricious and irrational, inasmuch as petitioner freely waived
her seniority rights when she resigned from her position as an
English teacher. Although an employee may waive his or her
seniority rights by resigning or retiring, "such a relinquishment
must be knowing and voluntary" (Matter of Alessi v Board of
Educ., Wilson Cent. Sch. Dist., 105 AD3d 54, 58 [2013]). An
effective waiver of such rights must be free from any indicia of
duress or coercion (see Matter of Gould v Board of Educ. of
Sewanhaka Cent. High School Dist., 81 NY2d 446, 452 [1993];
Matter of Costello v Board of Educ. of E. Islip Union Free School
Dist., 250 AD2d 846, 846-847 [1998]).

      The record demonstrates that, when petitioner was
encouraged by the interim Superintendent to take the LMS
position, she expressed her reluctance to leave her position as
an English teacher and asked if she could take a leave of absence
rather than resign. The interim Superintendent indicated that a
leave of absence would not suffice and that petitioner's
resignation was required. After tendering her letter of
resignation, which the Board accepted a month after appointing
her to the LMS position, petitioner received a longevity pay
increase, continued to accrue sick and personal leave time that
had carried over from her English teaching position and also
received a severance payment from the District that would not
have been made if petitioner had voluntarily severed her
employment. Notably, when petitioner moved into the LMS
position, she assumed such position without any interruption in
service (see Matter of Alessi v Board of Educ., Wilson Cent. Sch.
Dist., 105 AD3d at 60). Where, as here, an employee does not
take the necessary "affirmative steps to terminate all aspects of
his or her employment by a school district," no waiver of
seniority and tenure rights will be found (id. at 58 [internal
quotation marks and citation omitted]; compare Matter of
Morehouse v Mills, 268 AD2d 767, 767-768 [2000], lv denied 95
NY2d 751 [2000]). Accordingly, as the Commissioner's dismissal
of petitioner's appeal was arbitrary and capricious and lacking a
rational basis, Supreme Court's judgment annulling that
determination shall remain undisturbed (see Matter of Saad-El-Din
v Steiner, 101 AD3d 73, 76 [2013], appeal dismissed 20 NY3d 1032
                              -4-                  518424

[2013]; Matter of Donato v Mills, 6 AD3d 966, 967 [2004]). We
have considered respondents' final argument and find it to be
lacking in merit.

     Lahtinen, J.P., Garry, Egan Jr. and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
