SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

107 

CA 16-00874 

PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ. 

 

IN THE MATTER OF ELIZABETH G. QUATTRONE, 

PETITIONER-PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

ERIE 2-CHAUTAUQUA-CATTARAUGUS BOARD OF 

COOPERATIVE EDUCATIONAL SERVICES, 

RESPONDENT-DEFENDANT-RESPONDENT. 

 

JASON L. SCHMIDT, FREDONIA, FOR PETITIONER-PLAINTIFF-APPELLANT.

HODGSON RUSS LLP, BUFFALO (JOSEPH S. BROWN OF COUNSEL), FOR

RESPONDENT-DEFENDANT-RESPONDENT. 

 

Appeal from a judgment (denominated order) of the Supreme Court,

Chautauqua County (Paul B. Wojtaszek, J.), entered September 11, 2015. 

The judgment, inter alia, granted the motion of respondent-defendant

for leave to reargue and, upon reargument, granted the motion of

respondent-defendant for summary judgment and dismissed the petitioncomplaint. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: In 2003, petitioner-plaintiff (petitioner) was

notified by respondent-defendant (respondent) that her tenured

position as a teacher of gifted and talented elementary school

students had been abolished, and petitioner’s name thereafter was

placed on a preferred eligible list for reappointment to a similar

position in accordance with Education Law § 3013 (3) (a). In 2007,

petitioner learned that respondent had created a position as a teacher

in a universal prekindergarten (UPK) program in one of respondent’s

component school districts. Despite declining respondent’s offers of

that position in December 2007 and June 2008, petitioner subsequently

brought this hybrid plenary action and CPLR article 78 proceeding. In

her petition-complaint (petition), petitioner alleges, on various

theories, that respondent violated her recall rights under the

Education Law and seeks reappointment to the UPK teacher position,

with back pay and benefits and restored pension credit, retroactive to

2005, when respondent allegedly established that position. Upon

granting respondent’s motion for leave to reargue, Supreme Court

dismissed the petition in its entirety based on the doctrine of

primary jurisdiction, concluding that the issue of whether the former

and new positions are similar is for the Commissioner of Education to
-2- 107 

CA 16-00874 

resolve. 

Contrary to petitioner’s contention, the court, in the person of

the newly assigned Individual Assignment System (IAS) Judge, properly

entertained and granted respondent’s motion for leave to reargue (see

CPLR 2221 [d]), and the court did not thereby violate the doctrine of

the law of the case. Justice Wojtaszek had been assigned by

administrative order to replace Justice Chimes for this and all other

Chautauqua County cases. As a general rule, any motion affecting a

prior order, including a motion for leave to reargue a prior motion,

must be made “to the judge who signed” the prior order, “unless he or

she is for any reason unable to hear it” (CPLR 2221 [a]; see CPLR 2217

[a]). However, an exception to that statutory mandate “exists where

the Rules of the Chief Administrator of the Courts provide otherwise

(see CPLR 2221 [b])” (Matter of New York State Urban Dev. Corp.

[Fallsite, LLC], 85 AD3d 1723, 1724, lv dismissed 18 NY3d 870),

including those rules establishing and implementing the IAS system. 

The IAS rules provide that “[a]ll motions,” including those governed

by CPLR 2221, “shall be returnable before the assigned judge” (22

NYCRR 202.8 [a]). Thus, “[b]y the adoption of the IAS, ‘the CPLR 2221

requirement of referral of motions to a Judge who granted an order on

a prior motion has been modified to provide for consistency with the

mandate of the [IAS] that all motions in a case shall be addressed to

the assigned Judge’ ” (New York State Urban Dev. Corp., 85 AD3d at

1724). Thus, the motion was properly before Justice Wojtaszek as the

assigned Judge.

We further conclude that the court, after granting leave to

reargue (see CPLR 2221 [d]), properly dismissed the petition based

upon the doctrine of primary jurisdiction (see Matter of DiTanna v

Board of Educ. of Ellicottville Cent. Sch. Dist., 292 AD2d 772, 773;

see also Matter of Ferencik v Board of Educ. of Amityville Union Free

Sch. Dist., 69 AD3d 938, 938; Matter of Donato v Board of Educ. of

Plainview, Old Bethpage Cent. Sch. Dist., 286 AD2d 388, 388). “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 [UPK teacher] position are similar within

the meaning of Education Law § 3013 (3) (a)” (Donato, 286 AD2d at 388;

see DiTanna, 292 AD2d at 773; see also Ferencik, 69 AD3d at 938), and

the proceeding/action was properly dismissed for petitioner’s failure

to appeal the matter to the Commissioner of Education (see Matter of

Hessney v Board of Educ. of Pub. Schs. of Tarrytowns, 228 AD2d 954,

954-955, lv denied 89 NY2d 801).

Entered: March 24, 2017 Frances E. Cafarell

Clerk of the Court