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

518
CA 12-02040
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF ROSEANN KILDUFF,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ROCHESTER CITY SCHOOL DISTRICT, BOARD OF
EDUCATION OF ROCHESTER CITY SCHOOL DISTRICT
AND DR. BOLGEN VARGAS, IN HIS CAPACITY AS
ACTING SUPERINTENDENT OF ROCHESTER CITY
SCHOOL DISTRICT, RESPONDENTS-RESPONDENTS.


RICHARD E. CASAGRANDE, LATHAM (ANTHONY J. BROCK OF COUNSEL), FOR
PETITIONER-APPELLANT.

EDWIN LOPEZ-SOTO, GENERAL COUNSEL, ROCHESTER (CARA M. BRIGGS OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.


     Appeal from a judgment (denominated order) of the Supreme Court,
Monroe County (Evelyn Frazee, J.), entered August 3, 2012 in a
proceeding pursuant to CPLR article 78. The judgment denied the
petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, the petition is
granted, the determination is annulled and respondents are directed to
reinstate petitioner to her position as a tenured teacher forthwith
with full back pay and benefits and to remove all references to the
discipline imposed from petitioner’s personnel file.

     Memorandum: Petitioner commenced this proceeding pursuant to
CPLR article 78 seeking, inter alia, to annul the determination
suspending her for 30 days without pay from her position as a tenured
teacher with respondent Rochester City School District. Supreme Court
denied the petition, and petitioner appeals.

     We agree with petitioner that respondents failed to comply with
the requirements of Education Law § 3020 (1) when they disciplined
petitioner without affording her a hearing pursuant to Education Law
§ 3020-a. When presented with a question of statutory interpretation,
“courts should construe unambiguous language [in a statute] to give
effect to its plain meaning” (Matter of Daimler Chrysler Corp. v
Spitzer, 7 NY3d 653, 660). We agree with petitioner that the plain
language of Education Law § 3020 (1) provides that a tenured teacher
facing discipline, and whose terms and conditions of employment are
                                 -2-                          518
                                                        CA 12-02040

covered by a collective bargaining agreement (CBA) that became
effective on or after September 1, 1994, is entitled to elect either
the disciplinary procedures specified in Education Law § 3020-a or the
alternative procedures contained in the CBA. Here, the CBA at issue
went into effect on July 1, 2006. Thus, petitioner was entitled to
choose whether to be disciplined under the procedures set forth in the
CBA or those set forth in section 3020-a, which allowed petitioner to
elect a hearing (see § 3020-a [c]). Respondents, however, incorrectly
denied petitioner’s written request for a section 3020-a hearing. We
therefore reverse the judgment, grant the petition, annul the
determination, and we direct respondents to reinstate petitioner with
back pay and benefits retroactive to the date of her suspension, and
to remove all references to the discipline imposed from petitioner’s
personnel file (see generally Matter of Winter v Board of Educ. for
Rhinebeck Cent. Sch. Dist., 79 NY2d 1, 9, rearg denied 79 NY2d 978;
Matter of Diggins v Honeoye Falls-Lima Cent. Sch. Dist., 50 AD3d 1473,
1474).




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
