STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

_____________________________________________

MARSHA R. FAIRBANKS

Plaintiff,

vs Index No. H-11871

BOARD OF EDUCATION,

CITY OF JAMESTOWN

Defendants.

_____________________________________________

NATIONAL EDUCATION ASSOCIATION

OF NEW YORK

(Flora Miller Sliwa, Esq.

of Counsel) for Plaintiff

MICHAEL C. FOLEY, ESQ.

Attorney for Defendant

DECISION and ORDER

March 8, 1996

GERACE, J.

Petitioner, a teacher, filed this Article 78

proceeding to challenge the decision of the Respondent

school board denying her application for retroactive

membership in the New York State Teachers Retirement System

pursuant to Section 803 (b) (3) of the Retirement and

Social Security Law.

By Decision and Order dated October 18, 1995, this

Court denied the school board's motion to dismiss and

adjourned the motion pending fulfillment of the Court's

directive that petitioner undertake additional

administrative proceedings requesting reconsideration.

In its directive, the Court indicated that neither

party would be required to adhere literally to formal

procedures but should follow the former administrative

custom and practice although "either party may provide

additional proof or information."

The case was reconsidered by the Human Resource

Coordinator, the Superintendent and the School Board denied

the claim on the grounds that there was "no question that

such a form [substitute teacher form] and a procedure

existed" to explain the option to join the Retirement

System.

Petitioner does not question that a procedure was in

place and a form existed, but she submits proof by

affidavit that she received no orientation documentation,

paperwork or forms explaining opportunities to join the

system as a substitute.

Section 803 requires that there must be "documentation

or a notation to the effect that he or she so participated"

in such a procedure. Respondent cannot provide such

documentation because it discarded Petitioner's file

pursuant to the New York State Education Department's

records retention guidelines.

In its October 1995 Decision and Order, this Court

found that petitioner made "a prima facie case for relief".

She established that she did not participate in any

orientation, never saw a "Supplementary Blank for

Substitute Teachers", nor was told of her right to join the

retirement plan. The school board's responses address the

general practice of the past, not the specifics of any

documentation that petitioner participated in that

practice.

Based on an examination of the record and the

requirements of RSSL Section 803, the Court determines that

the petition must be granted in its entirety; that there

was inadequate proof that petitioner, as a substitute, was

advised of her right to join the retirement system;

inadequate proof that she participated in any procedure

whereby she would be so advised; that the rejection within

the meaning of Article 78 would be considered arbitrary and

capricious.

The respondent is directed to rescind its rejections

of Petitioner's claim for retroactive membership in Tier I

and file a new affidavit accepting her claim and so notify

petitioner and the New York State Retirement System.

No costs to either party.

THIS IS THE DECISION AND ORDER OF THIS COURT.

The signing and filing of this Decision and Order

shall not constitute entry or filing under CPLR 2220.

Counsel are not relieved from the applicable provision of

that rule respecting filing, entry and Notice of Entry.

Dated: March , 1996

Mayville, New York

_________________________________

JOSEPH GERACE

Supreme Court Justice

To all Counsel:

Please take notice that a DECISION and ORDER of

which the within is a copy, is duly granted in the above

entitled action on the day of , 1996, and

filed by the Court in the office of the Clerk of the County

of Chautauqua on the same date.

PAPERS CONSIDERED:

(1) Plaintiff's Notice of Petition; Dated: June 26, 1995

(2) Plaintiff's Memorandum of Law

(3) Defendant's Verified Answer: Dated: August 14, 1995

(4) Defendant's Affidavit; Dated: September 19, 1995

(5) Plaintiff's Affidavit; Dated: September 19, 1995

(6) Plaintiff's Supplemental Affidavit;

Dated: September 14, 1995

(7) Plaintiff's Affidavit; Dated: September 20, 1995

(8) Defendant's Affidavit; Dated: August 14, 1995

(9) Defendant's Affidavit; Dated: August 11, 1995

(10) Defendant's Brief; Dated: February 27, 1996

(11) Defendant's Memorandum of Law; Dated: October 12, 1995

TOPICAL SUMMARY

ARTICLE 78; SCHOOLS; PETITION UNDER 803 OF RETIREMENT AND

SS LAW PERMITTING RETROACTIVE APPLICATION FOR MEMBERSHIP;

TEACHER'S RETIREMENT; SUBSTITUTE TEACHER; WHERE TEACHER'S

FILES DISCARDED, PROOF OF GENERAL PRACTICE AND PROCEDURE

INSUFFICIENT TO REBUT PROOF OF NON-PARTICIPATION.