CICCARELLI v. BD. OF EDUC. OF THE W. SENECA

Judgment unanimously reversed, on the law, with costs, and petition granted in accordance with the following memorandum: Special Term erred in dismissing petitioner's CPLR article 78 petition. The record is devoid of evidence that petitioner "abandoned" her tenured teaching position. "[T]he burden of proving abandonment is upon the school district and must be established by clear and convincing evidence that the petitioner, by a voluntary and deliberate act, intended to relinquish her teaching position and forfeit her tenure rights (see Matter of Boyd v. Collins, 11 N.Y.2d 228; People ex rel. Patterson v. Board of Educ., 295 N.Y. 313; Matter of Johnson, 3 Ed Dept Rep 186; Matter of Schiliro, 13 Ed Dept Rep 163; Matter of Widrick, 16 Ed Dept Rep 248)" ( Matter of Rowland v. Oswego City School Dist., 97 Misc.2d 42, 45). Petitioner's employment may be terminated only in accordance with the procedures under section 3020-a Educ. of the Education Law. Thus the resolution of the Board is annulled and petitioner reinstated with back pay and benefits from December 20, 1982.