92 A.D.2d 256 | N.Y. App. Div. | 1983
OPINION OF THE COURT
This appeal raises the issue of the proper procedural steps to be taken by a teacher in order to recover unpaid salary for the period of an unlawful ouster after reinstatement has been voluntarily effected. We conclude that under Yris v Comsewogue Union Free School Dist. No. 3, Port Jefferson Sta. (63 AD2d 648, affd 55 NY2d 840), a petition seeking to recover such salary is by nature one to recover
In the spring of 1977, petitioner, a probationary teacher, was notified that her high school principal and the assistant superintendent of schools for her borough had recommended her dismissal. At that point she had served but two years of the maximum three-year probationary period. On reporting to her teaching post upon the opening of school in September, 1977, the principal rejected her tender of services and refused her admission. A review committee conducted a hearing on the recommendation, and the chancellor of the city school district informed her in June, 1978 that he did not concur in the dismissal recommendation. Petitioner was allowed to return to work at the start of the 1978-1979 school year. She made a number of requests for the salary she would have been paid during the 1977-1978 school year but for her unlawful ouster by the principal that prevented her from performing her duties, and apparently she eventually invoked a provision of the collective bargaining agreement between her union and the respondent board of education. By letter dated November 1, 1979 petitioner was informed that the matter would not be discussed because it was not considered a grievance under the agreement. The letter said the chancellor had forbidden payment of back-pay claims submitted by probationary employees in cases in which a recommendation for dismissal had been “reversed” by him. Petitioner filed a notice of claim in December, 1979 and then brought this special proceeding pursuant to CPLR article 78 to recover her unpaid salary. Special Term (106 Misc 2d 264) dismissed the petition on the ground that, as a probationary employee, petitioner had no right to continue in her position and accordingly had no right to recover salary for that period. We agree with the need to dismiss the petition but we disagree that petitioner had no right to her position and to her salary.
Under recent decisions (see Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Rathbone v Board of Educ., 47 AD2d 172, affd on opn at App Div 41 NY2d 825; see, generally, Sinicropi v Bennett, 92 AD2d 309 [decided
In this matter petitioner correctly argues, in essence, that by law (see Matter of Brown v Board of Educ., 42 AD2d 702, 703), her status as a probationary teacher was terminable only by the school district’s chancellor, not by her principal, who was a subordinate wholly lacking the delegated power to act upon the recommendation of dismissal. Therefore, the principal wrongfully ousted her by excluding her from her post during the 1977-1978 school year without authority. Her subsequent reinstatement by school officials, after the chancellor had rejected the dismissal recommendation, accomplished all that review by the State Commissioner of Education (see Education Law, § 310) or the courts (under CPLR article 78) could have done — except for the recovery of the unpaid salary for that period (cf. Toscano v McGoldrick, 300 NY 156; Matter of Rathbone v Board of Educ., supra).
At common law, the right to compensation, like the right to reinstatement after ouster, was an incident of tenure, and like tenure was based on status rather than contract. The government employer’s duty to pay back salary upon reinstatement generally became enforceable as a clear legal right in proceedings under CPLR article 78, and its predecessors, as an alternative to an action at law in debt to recover damages for the refusal to pay. (See Sinicropi v Bennett, supra.)
The distinction is important when CPLR article 78 is invoked in an attempt to recover unpaid salary — or its equivalent in damages. Historically the party perservering in certiorari could recover restitution. A party proving that a return to his mandamus application falsely stated facts precluding relief, or successfully demurring to a truthful return, could recover those damages not only compensating for his frustrated demand for specific relief but also those special damages arising as a consequence of the original wrong (see People ex rel. Goring v President & Bd.
Thus the issue before this court is whether a probationary teacher’s special proceeding to recover unpaid salary, after reinstatement, for a period of unlawful ouster states a claim for specific relief cognizable in such a proceeding. We hold it does not.
In this court’s decision in Yris v Comsewogue Union Free School Dist. No. 3, Port Jefferson Sta. (63 AD2d 648, affd 55 NY2d 840, supra) we held over a dissent by Justice Hopkins, that the Legislature’s repeal by section 1 of chapter
A contractual right, however, cannot generally be enforced against a governmental entity in a CPLR article 78 proceeding even when the relief sought is limited to payment of a debt rather than restitution for the loss of an opportunity to perform services. The injured party must bring an action at law or, if a statute, ordinance or regulation so permits, submit the claim to the proper auditing officer or body and seek review pursuant to article 78 thereafter if the audit determination is unsatisfactory (see State Div. of Human Rights [Geraci] v New York State Dept. of Correctional Servs., 90 AD2d 51, 68-69, n 8).
The instant petition plainly does not seek review of an adverse audit by either the board’s executive director, division of business and administration (By-laws of Bd of Educ of City School Dist of City of NY, § 1.10; Education Law, §§ 2580, 2590-m) or of a review of any such determination by the State Commissioner of Education (Education Law, § 310); nor does it seek to compel an appropriate officer to audit the claim. Instead, the petitioner seeks to have this court perform the auditing function by ascertaining damages sustained as a result of the breach of her right to salary attached by contract, rather than by common law or statute, to her probationary teaching position. This we cannot do.
Since more than a matter of form is involved (see Matter of Schwab v Bowen, 41 NY2d 907, supra) and the existence of a collective bargaining agreement has been raised (see Aloi v Board of Educ., 81 AD2d 874; Berlyn v Board of Educ., 80 AD2d 572, affd 55 NY2d 912), this court will not exercise the ameliorative power of CPLR 103 (subd [c]) to convert this special proceeding into an action.
Mangano, J. P., Gulotta and Bracken, JJ., concur.
Judgment modified, on the law, by adding thereto a provision that the dismissal of the petition is without prejudice to the institution of whatever further proceedings the petitioner may deem advisable. As so modified, judgment affirmed, without costs or disbursements.