IN RE: Frances WHITE

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Frances WHITE, respondent, v. Richard FREYMAN, etc., et al., appellants.

Decided: October 25, 1999

DANIEL W. JOY, J.P., WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ. Arnold B. Green, White Plains, N.Y. (Giacchino J. Russo of counsel), for appellants. James R. Sandner, New York, N.Y. (Christopher M. Callagy of counsel), for respondent.

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Education, Ossining Union Free School District, dated March 15, 1996, which, after a hearing, affirmed the denial of the petitioner's application pursuant to Retirement and Social Security Law § 803 for retroactive membership in the New York State Teachers' Retirement System, Tier II, the appeal is from a judgment of the Supreme Court, Westchester County (LaCava, J.), entered September 25, 1998, which granted the petition, annulled the determination, and directed the Board of Education, Ossining Union Free School District, to file an appropriate affidavit with the New York State Teachers' Retirement System attesting to the petitioner's eligibility for retroactive membership.

ORDERED that the judgment is affirmed, with costs.

Contrary to the determination of the Hearing Officer, the petitioner satisfied her initial burden of demonstrating that she met the requirements of Retirement and Social Security Law § 803(b)(3) (see, Matter of Rainson v. Board of Educ. of Manhasset Pub. Schools, 256 A.D.2d 411, 681 N.Y.S.2d 770;  cf., Matter of Forlenza v. Board of Educ. of Uniondale Union Free School Dist., 256 A.D.2d 409, 681 N.Y.S.2d 575).   The appellants failed to establish that at the time the petitioner was hired they had informed her of her right to join the retirement system.   Accordingly, the petition should be granted (see, Matter of Scanlan v. Buffalo Pub. School Sys., 90 N.Y.2d 662, 665 N.Y.S.2d 51, 687 N.E.2d 1334;  Matter of Spector v. Board of Educ., 251 A.D.2d 588, 674 N.Y.S.2d 760).

MEMORANDUM BY THE COURT.

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