SUPREME COURT: COUNTY OF CHAUTAUQUA
MARSHA R. FAIRBANKS
vs Index No. H-11871
BOARD OF EDUCATION,
CITY OF JAMESTOWN
NATIONAL EDUCATION ASSOCIATION
OF NEW YORK
(Flora Miller Sliwa, Esq.
of Counsel) for Plaintiff
MICHAEL C. FOLEY, ESQ.
Attorney for Defendant
DECISION and ORDER
March 8, 1996
Petitioner, a teacher, filed this Article 78
proceeding to challenge the decision of the Respondent
school board denying her application for retroactive
membership in the New York State Teachers Retirement System
pursuant to Section 803 (b) (3) of the Retirement and
Social Security Law.
By Decision and Order dated October 18, 1995, this
Court denied the school board's motion to dismiss and
adjourned the motion pending fulfillment of the Court's
directive that petitioner undertake additional
administrative proceedings requesting reconsideration.
In its directive, the Court indicated that neither
party would be required to adhere literally to formal
procedures but should follow the former administrative
custom and practice although "either party may provide
additional proof or information."
The case was reconsidered by the Human Resource
Coordinator, the Superintendent and the School Board denied
the claim on the grounds that there was "no question that
such a form [substitute teacher form] and a procedure
existed" to explain the option to join the Retirement
Petitioner does not question that a procedure was in
place and a form existed, but she submits proof by
affidavit that she received no orientation documentation,
paperwork or forms explaining opportunities to join the
system as a substitute.
Section 803 requires that there must be "documentation
or a notation to the effect that he or she so participated"
in such a procedure. Respondent cannot provide such
documentation because it discarded Petitioner's file
pursuant to the New York State Education Department's
records retention guidelines.
In its October 1995 Decision and Order, this Court
found that petitioner made "a prima facie case for relief".
She established that she did not participate in any
orientation, never saw a "Supplementary Blank for
Substitute Teachers", nor was told of her right to join the
retirement plan. The school board's responses address the
general practice of the past, not the specifics of any
documentation that petitioner participated in that
Based on an examination of the record and the
requirements of RSSL Section 803, the Court determines that
the petition must be granted in its entirety; that there
was inadequate proof that petitioner, as a substitute, was
advised of her right to join the retirement system;
inadequate proof that she participated in any procedure
whereby she would be so advised; that the rejection within
the meaning of Article 78 would be considered arbitrary and
The respondent is directed to rescind its rejections
of Petitioner's claim for retroactive membership in Tier I
and file a new affidavit accepting her claim and so notify
petitioner and the New York State Retirement System.
No costs to either party.
THIS IS THE DECISION AND ORDER OF THIS COURT.
The signing and filing of this Decision and Order
shall not constitute entry or filing under CPLR 2220.
Counsel are not relieved from the applicable provision of
that rule respecting filing, entry and Notice of Entry.
Dated: March , 1996
Mayville, New York
Supreme Court Justice
To all Counsel:
Please take notice that a DECISION and ORDER of
which the within is a copy, is duly granted in the above
entitled action on the day of , 1996, and
filed by the Court in the office of the Clerk of the County
of Chautauqua on the same date.
(1) Plaintiff's Notice of Petition; Dated: June 26, 1995
(2) Plaintiff's Memorandum of Law
(3) Defendant's Verified Answer: Dated: August 14, 1995
(4) Defendant's Affidavit; Dated: September 19, 1995
(5) Plaintiff's Affidavit; Dated: September 19, 1995
(6) Plaintiff's Supplemental Affidavit;
Dated: September 14, 1995
(7) Plaintiff's Affidavit; Dated: September 20, 1995
(8) Defendant's Affidavit; Dated: August 14, 1995
(9) Defendant's Affidavit; Dated: August 11, 1995
(10) Defendant's Brief; Dated: February 27, 1996
(11) Defendant's Memorandum of Law; Dated: October 12, 1995
ARTICLE 78; SCHOOLS; PETITION UNDER 803 OF RETIREMENT AND
SS LAW PERMITTING RETROACTIVE APPLICATION FOR MEMBERSHIP;
TEACHER'S RETIREMENT; SUBSTITUTE TEACHER; WHERE TEACHER'S
FILES DISCARDED, PROOF OF GENERAL PRACTICE AND PROCEDURE
INSUFFICIENT TO REBUT PROOF OF NON-PARTICIPATION.