MATTER OF ZURLO v. Ambach

53 N.Y.2d 1035 (1981)

In the Matter of Joseph Zurlo, Appellant, v. Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Respondents.

Court of Appeals of the State of New York.

Argued May 8, 1981.

Decided June 11, 1981.

Emanuel Tobachnik, Bernard F. Ashe and Rocco Solimando for appellant.

James H. Whitney, Robert D. Stone and Jean M. Coon for Gordon M. Ambach, respondent.

Thomas C. Mack for Board of Education of Medina Central School District, respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

*1037MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

As a physical education teacher whose full-time position was abolished, petitioner was entitled to preference for appointment to a vacancy thereafter occurring in a similar position whether part time or full time (Education Law, § 2510, subd 3). He was accorded that preference by being given a half-time physical education position. But the limitations in subdivision 1 of section 2510 with respect to abolishing a position and creating another for performance of similar duties, and in subdivision 3 of that section to a position consolidated with another position without creating a new position, refer in each instance to the terminated teacher's position. Here there has been consolidation not of petitioner's former position, but of the position which became vacant when another teacher resigned at the end of the year after petitioner's original position was abolished, and of the half-time position to which petitioner had been appointed, to create two three-quarter time positions.

Section 2503 (subd 5) empowers the board to "create, abolish, maintain and consolidate such positions * * * as, in its judgment, may be necessary for the proper and efficient administration of its work". Since the consolidation of positions to which petitioner objects does not, on the facts of this case, violate section 2510, we need not consider further the relative priority of the two sections. Nor, the matter being one entrusted by the Legislature to the judgment of the board, should we, as petitioner would have us do, second guess the board's decision. It is enough that, as shown by the facts that petitioner was retained at half time, has now been increased to three-quarter time, and remains on the preferred list for any full-time vacancy, there is no basis for finding that the board acted in bad faith.

Order affirmed, with costs, in a memorandum.