SUPREME COURT: COUNTY OF CHAUTAUQUA

_____________________________________________

SARAH L. GREGORY

Plaintiff,

vs Index #H-12551

BEMUS POINT CENTRAL

SCHOOL DISTRICT

Defendant.

_____________________________________________

FLORA MILLER SLIWA, ESQ.

Attorney for Plaintiff

PHILLIPS, LYTLE, HITCHCOCK,

BLAINE & HUBER

(Mark E. Brand, Esq.

of Counsel) for

Defendant

DECISION and ORDER

GERACE, J.

Petitioner seeks a judgment pursuant to Article 78

overturning Respondent's determination that she was not

entitled to retroactive membership in Tier II of the NYSTRS

pursuant to Section 803 of the Retirement and Social

Security Law.

Petitioner contends she presented substantial evidence

required by Section 803 (b)(3) at three sessions of

hearings conducted by the School Superintendent and on her

appeal to the School Board.

CPLR 7804(g) provides that if the "substantial

evidence" question is raised, the court must make an order

directing a transfer of the case to the Appellate Division

for disposition.

The mere presence of the substantial evidence

questions will trigger this transfer requirement if some

other objection does not terminate the proceeding.

DAVID D. SIEGEL, NEW YORK PRACTICE, Section 568.

"And the procedure is just that - a transfer, not

an appeal. The reason for the transfer is partly

historical and partly a recognition that a

"substantial evidence review of an administrative

record is analogous to an appellate review of a court-

made record and for that reason merits quick deposit

before the appellate tribunal". SIEGEL, supra.

"This type of transfer is more expeditious than an

appeal." SIEGEL, Supra, Section 570.

The Court hereby orders the transfer of this case to

the Appellate Division, Fourth Department.

The signing, filing, and mailing of a copy by the

Court of this Decision and Order to all Counsel shall not

constitute notice of entry required by CPLR 2220. Counsel

are not relieved from the applicable provisions of that

section respecting notice of entry.

THIS IS THE DECISION AND ORDER OF THIS COURT. NO

FURTHER ORDER SHALL BE NECESSARY.

Dated: March , 1996

Mayville, New York

__________________________________

JOSEPH GERACE

SUPREME COURT JUSTICE

PAPERS CONSIDERED:

Notice of Motion

FLORA MILLER SLIWA, ESQ.

Dated: October 12, 1995

Brief on Behalf of Petitioner

FLORA MILLER SLIWA, ESQ.

Affidavit of Jessie R. Hamilton

Dated: November 28, 1995

Affidavit of Flora Miller Sliwa

Dated: January 24, 1996

Respondent's Verified Answer

PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER

To all Counsel:

Please take notice that a DECISION and ORDER of

which the within is a copy, was duly granted in the above

entitled action on the day of , 1996, and

filed by the Court in the office of the Clerk of the County

of Chautauqua on the same date.