Yesawich, Jr., J., dissents and votes to affirm in a memorandum. Yesawich, Jr., J. (dissenting). I respectfully disagree and vote to affirm.
In my view, neither Matter of Smith v Board of Educ. (65 *827NY2d 797) nor Matter of Meliti v Nyquist (41 NY2d 183) is dispositive of this appeal, for these cases turn on the fact that the petitioning teachers did not hold valid teaching certificates on the day they were suspended. That is not the situation here.
Importantly, in Matter of Smith both the petitioners claimed that because they held valid provisional certificates to teach in areas other than those for which they were hired, the decision in Matter of Meliti, which permits suspension of a teacher for incompetence due to lack of any teaching certificate, had no application. Neither our court nor the Second Department accepted this argument (see, Matter of Smith v Board of Educ., 102 AD2d 655, 657-658, affd 65 NY2d 797; Matter of Cutler v Board of Educ., 104 AD2d 988, 989-990, affd 65 NY2d 797). And the Court of Appeals specifically refused to decide whether teachers who hold certificates outside the subject areas they were hired to teach are nevertheless qualified to teach for purposes of drawing their pay while suspended pending a disciplinary hearing (Matter of Smith v Board of Educ., supra, at 799; but see, Matter of Bali v Board of Educ., 68 AD2d 360, 362, appeal dismissed 48 NY2d 630).
The case at hand is distinguishable from those heretofore decided by our court and the Second Department. Here, petitioner possessed a valid certificate to teach in the area for which he was hired. Through no fault of his own, his position was eliminated, he was reassigned to teach a subject for which he held no certificate, and then was suspended because he lacked a certificate in the reassigned area. It strikes me that petitioner’s situation is considerably different from that confronted by the court in Matter of Meliti, and therefore the general rule against suspension of tenured teachers without pay applies (see, Matter of Jerry v Board of Educ., 35 NY2d 534, 541). Accordingly, petitioner’s suspension without pay was unlawful (see, supra; Matter of Bali v Board of Educ., supra).