Majority
p. 862In the Matter of Marilyn Daul, Respondent, v Board of Education of the Mahopac Central School District, Appellant, et al., Respondent. In the Matter of Beatrice Dionisio, Respondent, v Board of Education of the Mahopac Central School District, Appellant, et al., Respondent. Argued September 12, 1984; decided October 11, 1984
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APPEARANCES OF COUNSEL
Ronald A. Longo for appellant.
Norma F. Jacobson for respondents.
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division in Daul, and the judgment appealed from and order brought up for review in Dionisio, should each be affirmed, with costs.
These article 78 proceedings were commenced by the two most senior teachers on a “preferred eligible list” of the Mahopac Central School District, to challenge respondent’s appointment of one less senior as a substitute for a teacher
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on sick leave. Central to each proceeding is the question whether a vacancy within the meaning of subdivision 3 of section 2510 of the Education Law, entitling those on the eligible list to move up, was created for the 1981-1982 school year when a teacher who had been on sick leave for one and one-half years notified respondent in June 1981 that poor health prevented her from fulfilling her duties and shortly thereafter submitted her resignation (effective June 1982), which was accepted by the Board. In these circumstances, unlike Brewer v Board of Educ. ( 51 NY2d 855 ), where the incumbent teacher had taken a short-term leave of absence, we cannot say that the Appellate Division erred in the conclusion that a “vacancy” existed.
Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.
In Matter ofDaul v Board ofEduc.: Order affirmed, with costs, in a memorandum.
In Matter of Dionisio v Board of Educ.: Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.