IN RE: Denise M. FERENCIK

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

IN RE: Denise M. FERENCIK, appellant, v. BOARD OF EDUCATION OF AMITYVILLE UNION FREE SCHOOL DISTRICT, et al., respondents.

Decided: January 26, 2010

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ. Eugene Kirby Ferencik, Massapequa, N.Y., for appellant. Babchik & Young LLP, White Plains, N.Y. (Jack Babchik and Jordan Sklar of counsel), for respondents.

In a proceeding pursuant to CPLR article 78, inter alia, to compel the respondents to retroactively appoint the petitioner to a teaching position, the petitioner appeals, as limited by her brief, from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Woodard, J.), dated May 29, 2008, as denied the petition and dismissed the proceeding.

ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.

The petitioner's position as an art teacher in the Amityville Union Free School District (hereinafter the district) was abolished in 1992, and she was rehired by the district in 2001.   In 2007 she commenced this proceeding alleging that in 2006, she became aware that an art position had become available in 1994 for which she should have been appointed pursuant to Education Law § 3013(3)(a).   Contrary to the petitioner's contention, the Supreme Court properly denied the petition and dismissed the proceeding pursuant to the doctrine of primary jurisdiction, as the Commissioner of Education has the specialized knowledge and expertise to resolve, in the first instance, the factual question of whether a position similar to the petitioner's former position became available in 1994 (see Matter of deVente v. Board of Educ., Broome-Tioga Bd. of Coop. Educ. Servs., 15 A.D.3d 716, 718, 788 N.Y.S.2d 522;  Matter of Markow-Brown v. Board of Educ., Port Jefferson Pub. Schools, 301 A.D.2d 653, 653-654, 754 N.Y.S.2d 326;  Matter of Donato v. Board of Educ. of Plainview, Old Bethpage Cent. School Dist., 286 A.D.2d 388, 729 N.Y.S.2d 187).

The parties' remaining contentions are without merit or not properly before this Court.

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