Opinion
182
March 15, 2002.
Appeal from a judgment of Supreme Court, Erie County (Howe, J.), entered April 6, 2001, which granted respondents' motion to dismiss the CPLR article 78 petition.
David J. Seeger, Buffalo (Alison L. Mical of counsel), for petitioner-appellant.
Hodgson Russ LLP, Buffalo (Paul I. Perlman of counsel), for respondents-respondents.
PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, SCUDDER, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Petitioner was employed in the position of Elementary Principal in the Ellicottville Central School District (District) and was granted tenure effective September 1992. By letter dated March 25, 1999, petitioner was informed that her position had been abolished. She was further informed that the District would be creating the position of K-12 Coordinator of Curriculum, and she was invited to apply for that position. The District posted the position of K-12 Coordinator of Curriculum in April 1999 and filled it on April 4, 2000. Petitioner then commenced this CPLR article 78 proceeding contending that, because the newly created position was similar to the position that had been abolished, petitioner was entitled to be appointed to the position pursuant to Education Law § 2510(3).
Supreme Court properly dismissed the petition based upon the doctrine of primary jurisdiction ( see, Matter of Donato v. Board of Educ., 286 A.D.2d 388; Matter of Hessney v. Board of Educ., 228 A.D.2d 954, 955, lv denied 89 N.Y.2d 801; see also, Matter of Langston v. Iroquois Cent. School Dist., 291 A.D.2d 845 [decided Feb. 1, 2002]). "Here, the Commissioner of Education has the specialized knowledge and expertise to resolve the factual issue of whether the petitioner's former position and the new position are similar within the meaning of Education Law § [2510(3)(a)]" ( Matter of Donato v. Board of Educ., supra, at 388).