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

876
CA 14-00296
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND LINDLEY, JJ.


IN THE MATTER OF ANDREA GERVAIS AND STEPHANIE
PAROBEK, PETITIONERS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

BOARD OF EDUCATION OF EAST AURORA UNION FREE
SCHOOL DISTRICT AND EAST AURORA UNION FREE
SCHOOL DISTRICT, RESPONDENTS-APPELLANTS.


HARRIS BEACH PLLC, BUFFALO (RICHARD T. SULLIVAN OF COUNSEL), FOR
RESPONDENTS-APPELLANTS.

RICHARD E. CASAGRANDE, LATHAM (JENNIFER N. COFFEY OF COUNSEL), FOR
PETITIONERS-RESPONDENTS.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Erie County (Shirley Troutman, J.), entered May 3, 2013
in a CPLR article 78 proceeding. The judgment, inter alia, determined
that the denial of petitioners’ rights of placement on the preferred
eligibility list was arbitrary and capricious, and reinstated
petitioners to the preferred eligibility list.

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

     Memorandum: Petitioners, former teachers in respondent East
Aurora Union Free School District (School District), commenced this
CPLR article 78 proceeding seeking, inter alia, a judgment requiring
the School District to place them on the preferred eligibility list
for their respective areas of tenure. Respondents—the School District
and its Board of Education (Board)—asserted that the petition should
be dismissed as untimely and that, in any event, petitioners are not
entitled to be placed on the preferred eligibility list inasmuch as
they had refused to accept the part-time teaching positions offered to
them. Supreme Court ruled in favor of petitioners and ordered that
they be placed on the preferred eligibility list, retroactive to
September 12, 2012. We now affirm.

     Shortly before the start of the 2011-2012 school year,
petitioners were hired by the School District as full-time teachers.
On June 6, 2012, the Board, owing to budget constraints, reduced
multiple full-time teaching positions to part-time positions. The
Board’s resolution states that, “[a]s a result of the reduction of the
positions, the individuals affected, as determined through seniority
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                                                         CA 14-00296

and applicable contract language, will be excessed and placed on the
Preferred Eligibility List in accordance with applicable law and
regulation.” Because petitioners had the least seniority among
teachers in their subject areas, their jobs were selected for
reduction. Petitioner Andrea Gervais’s job was reduced from “1.0 FTE”
(a full-time position) to “.4 FTE” (40% of a full-time position),
while petitioner Stephanie Parobek’s job was reduced from “1.0 FTE” to
“.2 FTE” (20% of a full-time position). Petitioners thereafter
declined to accept those respective part-time positions, whereupon the
Board, by resolution passed on September 12, 2012, terminated their
employment and, by letters dated October 2, 2012, informed them that
their names “have not been placed on the District’s preferred
eligibility list” because they had rejected the part-time positions
offered to them. Petitioners filed separate notices of claim pursuant
to Education Law § 3813 on December 10 and 11, 2012, and then jointly
commenced this proceeding on January 10, 2013.

      We initially conclude that, contrary to respondents’ contention,
the court properly determined that the proceeding was timely
commenced. “A claim accrues for purposes of Education Law § 3813 when
it matures and damages become ascertainable” (Pope v Hempstead Union
Free Sch. Dist. Bd. of Educ., 194 AD2d 654, 655, lv dismissed 82 NY2d
846; see Blaze v New York City Dept. of Educ., 112 AD3d 428, 428-429).
Here, petitioners’ claims accrued, at the earliest, on September 12,
2012 when the Board terminated their employment with the School
District and then determined that they would not be placed on the
preferred eligibility list. Although the Board reduced petitioners’
positions to part-time on June 6, 2012 and notified them of such
decision by letters dated June 20, 2012, petitioners are not
challenging that action by the School District. Instead, petitioners
are challenging the determination of respondents not to place them on
the preferred eligibility list, and the June resolution did not state
that petitioners would not be placed on the preferred eligibility list
if they failed to accept the part-time positions offered to them.
Although the June 20, 2012 letters to petitioners from the School
District’s superintendent stated that petitioners would be placed on
the preferred eligibility list if they accepted the part-time
positions, petitioners were not then informed that accepting the part-
time positions was a requirement for being placed on the preferred
eligibility list. Thus, as the court determined, petitioners’ claims
accrued no earlier than September 12, 2012. This proceeding was
commenced on January 10, 2013, which is within the four-month statute
of limitations applicable to CPLR article 78 proceedings (see CPLR 217
[1]).

     With respect to the substantive merits of the case, we conclude
that, contrary to respondents’ further contention, the court properly
ordered respondents to place petitioners on the preferred eligibility
list. Education Law § 2510 (3) (a) provides that, if a teaching
position “is abolished or if it is consolidated with another position
without creating a new position, the person filling such position at
the time of its abolishment or consolidation shall be placed upon a
preferred eligible list of candidates for appointment to a vacancy
that then exists or that may thereafter occur in an office or position
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                                                         CA 14-00296

similar to the one which such person filled without reduction in
salary or increment, provided the record of such person has been one
of faithful, competent service in the office or position he or she has
filled” (emphasis added). The statute further provides that the
persons “on such preferred list shall be reinstated or appointed to
such vacancies . . . in the order of their length of service in the
system at any time within seven years from the date of abolition or
consolidation of such office or position” (id.)

     We agree with petitioners that respondents, by reducing their
full-time teaching positions to part-time positions, “effectively
abolished the full-time position[s] and created [] new part-time
position[s],” thereby triggering petitioners’ rights under Education
Law § 2510 to be placed on the preferred eligibility list for possible
reemployment in a full-time position (Wild v Board of Educ. of
Forestville Cent. Sch. Dist., 166 AD2d 901, 901, lv denied 77 NY2d
802; see also Seney v Board of Educ. of the E. Greenbush Cent. Sch.
Dist., 103 AD3d 1022, 1023). We further conclude that petitioners’
rejection of the part-time positions, which resulted in the
termination of their employment with the School District, did not
render them ineligible for placement on the preferred eligibility list
(see generally Matter of Girard v Board of Educ. of City Sch. Dist. of
Buffalo, 168 AD2d 183, 186; Matter of Lewis v Cleveland Hill Union
Free Sch. Dist., 119 AD2d 263, 266-267).

     Finally, we note that, to the extent that respondents contend
that petitioners were not entitled to placement on the preferred
eligibility list because they did not have tenure, that contention is
not properly before us inasmuch as it is raised for the first time on
appeal (see Ciesinski v Town of Aurora, 202 AD2d 984, 985).




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
