
    In the Matter of Beatrice Dionisio, Appellant, v Board of Education of the Mahopac Central School District et al., Respondents.
   — In a proceeding pursuant to CPLR article 78, inter alia, to compel the respondent Board of Education of the Mahopac Central School District to appoint petitioner to a position as a regular substitute elementary school teacher for the 1981-1982 school year with back pay and benefits, the appeal is from a judgment of the Supreme Court, Putnam County (Braatz, J.), dated May 6, 1982, which dismissed the proceeding. Judgment modified, on the law, by granting the amended petition only to the extent of (1) awarding appellant seniority credit in the elementary tenure area for the 1981-1982 school year and (2) directing the Board of Education of the Mahopac Central School District to pay petitioner the back pay which she would have earned in the regular substitute position, less any compensation which she may have earned in any other employment or other occupation and any unemployment insurance benefits she may have received during such period. As so modified, judgment affirmed, with costs to appellant. Under the facts and circumstances of this case, we conclude that the regular substitute position occupied by respondent De Francesco during the 1981-1982 school year constituted a “vacancy” within the meaning of subdivision 3 of section 2510 of the Education Law which should have been filled by appellant, who had the greatest seniority of the excessed elementary school teachers on the preferred eligible list. This regular substitute position was to replace the position held by an incumbent teacher who had been on sick leave for approximately one and one-half years as of June, 1981, when she informed the board of education of her intention to resign from the school district, effective June, 1982, due to her poor health. This teacher remained nominally on the staff of the school district for the 1981-1982 school year only to participate in a “sick leave bank” established pursuant to a collective bargaining agreement with the teachers’ union for teachers with long-term illnesses who had exhausted their regular sick leave. Thus, the board of education was aware that she intended to resign effective June 30, 1982, in August, 1981, when it appointed respondent De Francesco to replace her for the 1981-1982 school year. Less than two weeks after the board made the appointment of De Francesco, the incumbent teacher submitted a formal letter of resignation effective June 30, 1982 and the board accepted her resignation at its regular meeting on September 8,1981, when the school year had barely begun. In contrast to Matter of Brewer v Board ofEduc. (51 NY2d 855), where the incumbent of the regular substitute position at issue was on a one-year sabbatical leave of absence and was very likely to return to reclaim her position at the end of her leave, in the instant case it was highly unlikely that the incumbent, who was suffering from a long-term degenerative illness, would return to her teaching position. Therefore, it was clear that the one-year substitute position at issue would ripen into a permanent opening. In the context of this fact situation, we conclude that the board of education was required to honor the protections afforded in subdivision 3 of section 2510 of the Education Law to teachers like appellant who have been excessed from their positions and placed upon a “preferred eligible list” for appointment to “vacancies in such corresponding or similar positions in the order of their length of service in the system”. To the extent that appellant seeks reinstatement to the regular substitute position occupied by respondent De Francesco during the 1981-1982 school year, the amended petition must be dismissed as that school year has long since passed. The board should, however, award appellant the seniority credit in the elementary tenure area which she would have earned had she served as a regular substitute for that school year. In addition, the board should be directed to pay appellant the back salary she would have earned had she occupied the regular substitute position for the 1981-1982 school year, less any compensation which she may have earned in any other employment or occupation and any unemployment insurance benefits she may have received during such period. This back salary may be awarded to petitioner in this CPLR article 78 proceeding as “incidental to the primary relief sought by the petitioner”, in this case the award of back seniority credit (see CPLR 7806; cf. Matter of Golomb v Board of Educ., 92 AD2d 256). We have considered the other contentions raised by appellant and have found them to be without merit. Mollen, P. J., Titone, Weinstein and Rubin, JJ., concur.  