        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

107
CA 16-00874
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF ELIZABETH G. QUATTRONE,
PETITIONER-PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ERIE 2-CHAUTAUQUA-CATTARAUGUS BOARD OF
COOPERATIVE EDUCATIONAL SERVICES,
RESPONDENT-DEFENDANT-RESPONDENT.


JASON L. SCHMIDT, FREDONIA, FOR PETITIONER-PLAINTIFF-APPELLANT.

HODGSON RUSS LLP, BUFFALO (JOSEPH S. BROWN OF COUNSEL), FOR
RESPONDENT-DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Chautauqua County (Paul B. Wojtaszek, J.), entered September 11, 2015.
The judgment, inter alia, granted the motion of respondent-defendant
for leave to reargue and, upon reargument, granted the motion of
respondent-defendant for summary judgment and dismissed the petition-
complaint.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: In 2003, petitioner-plaintiff (petitioner) was
notified by respondent-defendant (respondent) that her tenured
position as a teacher of gifted and talented elementary school
students had been abolished, and petitioner’s name thereafter was
placed on a preferred eligible list for reappointment to a similar
position in accordance with Education Law § 3013 (3) (a). In 2007,
petitioner learned that respondent had created a position as a teacher
in a universal prekindergarten (UPK) program in one of respondent’s
component school districts. Despite declining respondent’s offers of
that position in December 2007 and June 2008, petitioner subsequently
brought this hybrid plenary action and CPLR article 78 proceeding. In
her petition-complaint (petition), petitioner alleges, on various
theories, that respondent violated her recall rights under the
Education Law and seeks reappointment to the UPK teacher position,
with back pay and benefits and restored pension credit, retroactive to
2005, when respondent allegedly established that position. Upon
granting respondent’s motion for leave to reargue, Supreme Court
dismissed the petition in its entirety based on the doctrine of
primary jurisdiction, concluding that the issue of whether the former
and new positions are similar is for the Commissioner of Education to
                                 -2-                           107
                                                         CA 16-00874

resolve.

     Contrary to petitioner’s contention, the court, in the person of
the newly assigned Individual Assignment System (IAS) Judge, properly
entertained and granted respondent’s motion for leave to reargue (see
CPLR 2221 [d]), and the court did not thereby violate the doctrine of
the law of the case. Justice Wojtaszek had been assigned by
administrative order to replace Justice Chimes for this and all other
Chautauqua County cases. As a general rule, any motion affecting a
prior order, including a motion for leave to reargue a prior motion,
must be made “to the judge who signed” the prior order, “unless he or
she is for any reason unable to hear it” (CPLR 2221 [a]; see CPLR 2217
[a]). However, an exception to that statutory mandate “exists where
the Rules of the Chief Administrator of the Courts provide otherwise
(see CPLR 2221 [b])” (Matter of New York State Urban Dev. Corp.
[Fallsite, LLC], 85 AD3d 1723, 1724, lv dismissed 18 NY3d 870),
including those rules establishing and implementing the IAS system.
The IAS rules provide that “[a]ll motions,” including those governed
by CPLR 2221, “shall be returnable before the assigned judge” (22
NYCRR 202.8 [a]). Thus, “[b]y the adoption of the IAS, ‘the CPLR 2221
requirement of referral of motions to a Judge who granted an order on
a prior motion has been modified to provide for consistency with the
mandate of the [IAS] that all motions in a case shall be addressed to
the assigned Judge’ ” (New York State Urban Dev. Corp., 85 AD3d at
1724). Thus, the motion was properly before Justice Wojtaszek as the
assigned Judge.

     We further conclude that the court, after granting leave to
reargue (see CPLR 2221 [d]), properly dismissed the petition based
upon the doctrine of primary jurisdiction (see Matter of DiTanna v
Board of Educ. of Ellicottville Cent. Sch. Dist., 292 AD2d 772, 773;
see also Matter of Ferencik v Board of Educ. of Amityville Union Free
Sch. Dist., 69 AD3d 938, 938; Matter of Donato v Board of Educ. of
Plainview, Old Bethpage Cent. Sch. Dist., 286 AD2d 388, 388). “Here,
the Commissioner of Education has the specialized knowledge and
expertise to resolve the factual issue of whether the [petitioner’s]
former position and the new [UPK teacher] position are similar within
the meaning of Education Law § 3013 (3) (a)” (Donato, 286 AD2d at 388;
see DiTanna, 292 AD2d at 773; see also Ferencik, 69 AD3d at 938), and
the proceeding/action was properly dismissed for petitioner’s failure
to appeal the matter to the Commissioner of Education (see Matter of
Hessney v Board of Educ. of Pub. Schs. of Tarrytowns, 228 AD2d 954,
954-955, lv denied 89 NY2d 801).




Entered:   March 24, 2017                      Frances E. Cafarell
                                               Clerk of the Court
