* Subsequent History: Matter of Sudano v Elia; Supreme Court, Albany County; Special Term; Decision Order and Judgment dismissed petition to review; December 20, 2017. *

Appeal of SUSAN SUDANO from action of the Board of Education of the William Floyd Union Free School District and Lori Colabufo, Shari Hanwright, Laura D’Esposito and Paul Paniccia, regarding seniority and preferred eligibility rights.

Decision 17,078

(April 20, 2017)

Richard E. Casagrande, Esq., attorney for petitioner, Damon S. Levenstien, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondent Board of Education of William Floyd Union Free School District, Howard M. Miller, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the actions of the Board of Education of the William Floyd Union Free School District (“respondent board”) in abolishing her position and retaining respondents Lori Colabufo, Shari Hanwright, Laura D’Esposito and Paul Paniccia in their respective positions.  The appeal must be dismissed.

Petitioner was a tenured teacher employed in the district in the tenure area of remedial reading, effective on September 1, 2004, and was subsequently granted tenure, effective September 1, 2007.

In 2005, the district implemented the Leveled Literacy Intervention Program (“LLIP”) to serve at-risk students in kindergarten through second grade.  Respondents Colafubo and Hanwright, tenured in the special education tenure area, as well as respondents D’Esposito and Paniccia, tenured in the elementary education tenure area, were all assigned to teach in the LLIP on a full-time basis.  Respondent board indicates that the LLIP is an assignment within the elementary and special education tenure areas, although petitioner asserts that positions in the LLIP are within the remedial reading tenure area.

On or about May 24, 2011, respondent board adopted a resolution resulting in the elimination of several teaching positions.  As a result, petitioner’s position in the remedial reading tenure area was abolished, effective June 30, 2011, and her name was placed on the preferred eligibility list (“PEL”).  This appeal ensued.

Petitioner contends that she was improperly excessed as she was not the least senior teacher in the remedial reading tenure area.  Petitioner asserts that teachers serving in the LLIP were in the remedial reading tenure area and, thus, one of those individuals should have been excessed before her.  Petitioner seeks a declaration that respondent board’s excessing of petitioner and the subsequent failure to recall her were in violation of the Education Law and an order compelling respondent board to appoint her to a remedial reading position, nunc pro tunc to September 1, 2011.

Respondents generally deny petitioner’s entitlement to any of the positions held by the individual respondents.  Respondent board contends that the LLIP positions are assignments within the elementary and special education tenure areas, two areas in which petitioner is not tenured, and thus petitioner was properly excessed as the least senior teacher in the remedial reading tenure area.  Respondents further assert that the petition fails to state a claim upon which relief may be granted and that the petition is untimely.  For all of the above reasons, respondents argue that the appeal must be dismissed.

First, I must address the procedural issues.  Respondents contend that the appeal is untimely as it was not commenced within 30 days of the effective date of the abolishment.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  However, where the alleged wrong is that another teacher has been appointed to a position in violation of the petitioner’s preferred eligibility rights, the petitioner does not become aggrieved until the date that another person commences service in the position at issue (Appeal of Gimbrone, 56 Ed Dept Rep, Decision No. 17,036; Appeal of Gordon, 53 id., Decision No. 16,582; Appeal of Dickinson, 50 id., Decision No. 16,082; Appeal of Petkovsek, 48 id. 513, Decision No. 15,933).  The record indicates that petitioner commenced the appeal by serving respondents board and Colabufa within 30 days of the beginning of the school year, the first date on which petitioner became aggrieved.  To the extent petitioner contends that respondent violated Education Law §3013(3) by failing to recall her from the preferred eligibility list to vacant positions that were filled by other teachers, I find that the appeal is timely.  To the extent petitioner contends that she was not the least senior teacher in the remedial reading tenure area and should not have been excessed, I agree with respondent that such claim had to be brought within 30 days of the effective date of the abolition and is untimely (Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582).  However, in light of the conflict in past Commissioner’s decisions, the Commissioner in Appeal of Gordon excused the delay in commencing an appeal more than 30 days after the effective date of the abolition of the position in that appeal and indicated that delays in commencing similar appeals pending on the date of that decision also would be excused where service was made within 30 days of the date on which another teacher commenced service in a position to which the petitioner claimed an entitlement.  This appeal was pending on the date Appeal of Gordon was decided, and I therefore excuse petitioner’s delay in bringing her claim that she was not the least senior teacher in the tenure area of the position abolished, for the reasons stated in Appeal of Gordon.

Nevertheless, the appeal must be dismissed on other procedural grounds.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

The record indicates that petitioner initially failed to properly serve respondents Hanwright and Paniccia.  Petitioner attempted to effect service upon respondents Hanwright and Paniccia on October 3, 2011 by serving papers upon a “person of suitable age and discretion.”  The affidavits of service, however, fail to demonstrate that petitioner made any diligent attempt to serve respondents Hanwright and Paniccia personally before resorting to this method of substitute service (Appeal of Boni, 41 Ed Dept Rep 241, Decision No. 14,666).  I note that petitioner later effected personal service upon both of them on October 6, 2011.  However, such service was late as it was more than 30 days after those individual respondents began to serve in the positions to which petitioner claims an entitlement.  Petitioner has offered no excuse for the delay in effecting personal service and in the absence of evidence of diligent efforts to effect timely personal service, I decline to excuse the delay.  As such, because petitioner failed to timely serve respondents Hanwright and Paniccia, they, therefore, have not been properly joined as parties to this appeal.

With regard to respondent D’Esposito, petitioner attempted to effect service by affixing a copy of the petition to the door at a residence presumed to be that of respondent D’Esposito.  The record indicates that there was one prior attempt to serve respondent D’Esposito several hours earlier on that same day.  I cannot find that two attempts at service, both within hours of each other on the same day, constitute a diligent effort.  Moreover, absent evidence of diligent efforts to effect service upon respondent D’Esposito, service by posting or by mail is ineffectual.  Although the regulation permits service of a petition on a person of suitable age and discretion at the respondent’s residence where the respondent cannot be found, there is no authority for alternative service by mail or by posting, absent express authorization from the Commissioner (Appeal of Boni, 41 Ed Dept Rep 214, Decision No. 14,666; Application of Balen, 40 id. 250, Decision No. 14,474; Appeal of Ponella, 38 id. 610, Decision No. 14,103).  Since the Commissioner did not authorize alternative service, and no personal service was made upon respondent D’Esposito, the appeal must be dismissed as to her for improper service, and therefore she also has not been properly joined as a party to this appeal (Appeal of Boni, 41 Ed Dept Rep 214, Decision No. 14,666; Application of Grinnell, 37 id. 504, Decision No. 13,914).

If I were to accept petitioner’s argument that all four of the LLIP teachers were serving in the remedial reading tenure area, and find in petitioner’s favor, the employment rights of respondents would be adversely affected.  Under these circumstances, they are necessary parties and should have been joined and served as such (Appeal of Nolett, 48 Ed Dept Rep 259, Decision No. 15,852; Appeal of Johnson, 46 id. 432, Decision No. 15,555; Appeal of Fife, 46 id. 361, Decision No. 15,533).  Therefore, the appeal must be dismissed for failure to join necessary parties.

Considering this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE