IN RE: Ann K. LOVETT (1997)

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Education of the Manhasset Union Free School District, s/h/a Manhasset Public Schools, dated September 21, 1995, which adopted the findings and recommendations of a Hearing Officer and denied the petitioner retroactive membership in the New York State Teacher's Retirement System, the appeal is from a judgment of the Supreme Court, Suffolk County (Werner, J.), entered November 12, 1996, which, inter alia, granted the petition and annulled the determination.

ORDERED that the judgment is reversed, on the law, without costs or disbursements, the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits.

 Contrary to the appellant's contention, a notice of claim pursuant to Education Law § 3813 was not a condition precedent to the commencement of this proceeding (see, Matter of Piaggone v. Board of Educ., 92 A.D.2d 106, 459 N.Y.S.2d 629).   Nevertheless, the petition must be denied on the merits.

 The determination of the Board of Education of the Manhasset Union Free School District, s/h/a Manhasset Public Schools, which denied the petitioner's application for retroactive membership in the New York State Teacher's Retirement System (see, Retirement and Social Security Law § 803) was not arbitrary and capricious or without a rational basis.   The petitioner's prior membership in the retirement system and her response in her most recent employment application that she is no longer a member of the system, were sufficient to establish that she participated in “a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision by him or her to join a public retirement system” (Retirement and Social Security Law § 803[b][3][iii]);  see, Matter of Clark v. Board of Educ. for Kingston City School Dist., 90 N.Y.2d 662, 665 N.Y.S.2d 51, 687 N.E.2d 1334.   Consequently, the petitioner was ineligible for retroactive membership.

MEMORANDUM BY THE COURT.