IN RE: Rita FORLENZA (1998)

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Education of the Uniondale Union Free School District, dated February 13, 1996, which, after a hearing, denied the petitioner retroactive membership in the New York State Teachers' Retirement System, the appeal is from a judgment of the Supreme Court, Nassau County (Goldstein, J.), entered October 20, 1997, which granted the petition, annulled the determination, and directed the Board of Education of the Uniondale Union Free School District to file an affidavit in support of the petitioner's application for retroactive membership in the New York State Teachers' Retirement System.

ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed on the merits.

 Because the hearing which preceded the determination under review was not held pursuant to direction by law (see, Retirement and Social Security Law § 803[b][3] ), the issue presented on this appeal is whether the determination was affected by error of law, arbitrary and capricious, or an abuse of discretion (see, CPLR 7803[3];  Matter of Colton v. Berman, 21 N.Y.2d 322, 329, 287 N.Y.S.2d 647, 234 N.E.2d 679;  Matter of Bevacqua v. Sobol, 176 A.D.2d 1, 3, 579 N.Y.S.2d 243).   Under the circumstances of this case, where the hearing officer concluded that the petitioner was not entirely credible in her testimony regarding whether or not she was informed of the option to join the retirement system when she began her employment with the Uniondale Union Free School District (hereinafter the District), the Supreme Court erred in finding that the District's determination was arbitrary and capricious (see, Retirement and Social Security Law § 803;  Matter of Tompkins v. Board of Educ. of Ossining Union Free School Dist., 245 A.D.2d 522, 666 N.Y.S.2d 37;  Matter of Chupka v. Board of Educ. of Binghamton City School Dist., 240 A.D.2d 795, 658 N.Y.S.2d 519;  see also, Matter of Scanlan v. Buffalo Pub. School Sys., 90 N.Y.2d 662, 665 N.Y.S.2d 51, 687 N.E.2d 1334).   Accordingly, the judgment must be reversed and the proceeding dismissed.

MEMORANDUM BY THE COURT.