Opinion
July 2, 1981
Judgment, Supreme Court, New York County (Evans, J.), entered October 20, 1980 in this article 78 proceeding, granting petition and directing respondent-appellant Board of Education of the City of New York to give petitioners-respondents on-the-job performance exams in accordance with the judgment of the United States District Court in Chance v. Board of Educ. ( 330 F. Supp. 203, affd 458 F.2d 1167, and 496 F.2d 820), unanimously reversed, on the law, without costs, and matter remanded for trial of disputed issues of fact arising from the pleadings, including issues bearing on (a) the validity of petitioners' appointments under Civil Service Law and Federal court decree, and (b) the right, if any, to pay at higher title and back pay, including the issue of notice. Although the problems presented by this petition have been before the courts all too long and resolution is overdue, this factor, alone, does not justify summary disposition. The pleadings seem to create more issues than envisaged by Special Term in its decision and the record does not make clear whether the authorized procedures were followed. Under the circumstances, we have no alternative but to order a trial as above indicated.
Concur — Sandler, J.P., Ross, Carro and Silverman, JJ.