IN RE: Janet C. ZINMAN (1998)

In a proceeding pursuant to CPLR article 78 to review a determination of the Deputy Superintendent of Schools of the Yonkers City School District, dated May 1, 1996, which denied the petitioner's application for retroactive membership in the New York State Teachers' Retirement System, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Murphy, J.), entered December 24, 1996, which denied the petition and dismissed the proceeding.   The appeal brings up for review so much of an order of the same court, dated July 2, 1997, as, upon reargument, adhered to the original determination (see, CPLR 5517[b] ).

ORDERED that the appeal from the judgment is dismissed, as the judgment was superseded by the order dated July 2, 1997, made upon reargument;  and it is further,

ORDERED that the order dated July 2, 1997, is reversed insofar as reviewed, on the law, the judgment is vacated, the petition is granted, the respondents' determination is annulled, and the matter is remitted to the Board of Education, Yonkers City School District, to file an affidavit pursuant to Retirement and Social Security Law § 803(b)(3) stating that the petitioner is eligible for retroactive membership in the New York State Teachers' Retirement System;  and it is further,

ORDERED that the appellant is awarded one bill of costs.

 Contrary to the contention of the Board of Education, Yonkers City School District (hereinafter the School District), the petitioner's assertion that she did not participate in a procedure which a reasonable person would recognize as an explanation or request requiring a formal decision to join the retirement system amounted to substantial evidence necessary to sustain her burden under Retirement and Social Security Law § 803(b)(3) (see, Matter of Scanlan v. Buffalo Pub. School, 90 N.Y.2d 662, 665 N.Y.S.2d 51, 687 N.E.2d 1334;  Matter of Dapp v. Board of Educ. of Yonkers City School Dist., 248 A.D.2d 712, 670 N.Y.S.2d 567 [decided herewith] ).  Accordingly, the School District's denial of the petitioner's request for retroactive membership in the retirement system was arbitrary and capricious (see, Matter of Leister v. Board of Educ. of Brentwood Union Free School Dist., 232 A.D.2d 641, 648 N.Y.S.2d 1013, affd. sub nom. Scanlan v. Buffalo Pub. School, 90 N.Y.2d 662, 665 N.Y.S.2d 51, 687 N.E.2d 1334 supra;  Matter of Kaufman v. Board of Educ. of Jericho Union Free School Dist., 236 A.D.2d 538, 653 N.Y.S.2d 683;  Cleary v. Board of Educ. of Binghamton City School Dist., 243 A.D.2d 949, 663 N.Y.S.2d 374;  Matter of Candrea v. Board of Educ. of Yonkers City School Dist., 236 A.D.2d 536, 653 N.Y.S.2d 680;  Matter of Gregory v. Bemus Point Cent. School Dist., 237 A.D.2d 887, 654 N.Y.S.2d 502;  Matter of Fariel v. Board of Educ. of Val. Stream Union Free School Dist., 230 A.D.2d 854, 646 N.Y.S.2d 545;  cf., Hassildine v. Mattituck-Cutchogue Union Free School Dist., 225 A.D.2d 623, 639 N.Y.S.2d 441).

MEMORANDUM BY THE COURT.