71 A.D.2d 740 | N.Y. App. Div. | 1979
Lead Opinion
—Appeal from a judgment of the Supreme Court at Special Term, entered June 20, 1978 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78 to direct respondents to pay a death benefit pursuant to section 512 (subd b, par 2) of the Education Law. Judith R. Sherman, employed as a teacher by the Board of Education of the City of New Rochelle, New York, became a member of the New York State Teachers’ Retirement System on September 10, 1959. Effective November 5, 1975, the board of education granted Sherman a parental leave of absence without pay until June 30, 1976, and later approved her request for an extension of the leave until June 30, 1977. In April of 1977 Sherman advised the board that she planned to return from the parental leave for the ensuing school year 1977-1978. The board adopted a resolution on July
Dissenting Opinion
dissents and votes to reverse in the following memorandum; Main, J., not taking part. Mikoll, J. (dissenting). I respectfully dissent. Petitioner is the designated beneficiary of decedent’s death benefit payable under section 512 (subd b, par 2) of the Education Law. Decedent had been a full-time teacher since September 10, 1955, employed by the Board of Education of the City of New Rochelle. She was granted a year’s leave of absence without pay from November 5, 1975 to June 30, 1976, to care for her adopted child. This leave was extended to June 30, 1977. In April, 1977, decedent advised the board that she intended to return to work during the 1977-1978 school year. Her leave of absence was terminated, effective June 30, 1977, and her name was included in the salary schedule adopted by the board for 1977-1978 season. Decedent died on August 2, 1977. Respondents