Board of Education v. Licata

Dillon, J. Defendant, a teacher in plaintiff’s school district, requested a leave of absence for the last two weeks of the 1974 school year in order to commence a period of military service from June 10, 1974 to September 6, 1974. Despite plaintiff’s denial of the request, defendant absented himself from his teaching responsibilities and reported to his temporary active duty station with the United States Marine Corps Reserves. Plaintiff appeals from an order denying its motion for summary judgment with respect to its first cause of action seeking declaratory relief. Although the orders directing defendant to military service in 1974 were issued with his consent, indeed at his request, he was nonetheless entitled to a leave of absence from his posi [208] tion as a public employee pursuant to subdivision 2 of section 242 of the Military Law which provides that public employees shall be deemed to have a leave of absence while engaged in the performance of ordered military duty. Ordered military duty is defined as service performed for a period "not exceeding a total of thirty days in any one calendar year * * * regardless of whether such orders are or may be issued with the consent of such public officer or employee, and regardless of whether such period * * * constitute^] part of a period * * * exceeding thirty days in any calendar year.” (Military Law, § 242, subd 1, par [b], cl [2].) Defendant was therefore guaranteed a leave of absence of up to 30 days notwithstanding the fact that his total period of military duty exceeded 30 days (see Matter of Williams v Walsh, 289 NY 1). Plaintiff contends, however, that leave was prohibited by its regulation which provides that military leave will be granted only where it cannot be arranged when schools are closed. Although the regulation has the force and effect of law (see Matter of Stone v Gross, 25 AD2d 753, affd 19 NY2d 675), its apparent conflict with section 242 of the Military Law (cf. Matter of Williams v Walsh, supra; Fiorile v Goldman, 24 Misc 2d 944) need not concern us here in view of the contract between the parties which provides that "[m]ilitary leave will be granted to any teacher as provided by Military Law” and that "[t]his agreement shall supersede any rules, regulations or practices of the Board contrary to or inconsistent with its terms.” In reaching this result, we recognize, as is so ably demonstrated in the dissent, that section 242 of the Military Law, as applied here, works an injustice upon the plaintiff, students and taxpayers, and unduly serves the personal interests of the defendant. The legislative history of its enactment, however, leaves us powerless to adopt an alternative construction (see Civil Service Department Memorandum, NY Legis Ann, 1954, p 69). Plaintiff’s recourse is in the Legislature, not the courts. Special Term’s order should be reversed and summary judgment granted in favor of defendant (CPLR 3212, subd [b]).