Opinion
Argued January 7, 1980
Decided January 15, 1980
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, IRVING RADER, J.
Ellen J. Bronzo and David B. Greenfield for appellant.
Michael Linn for respondent.
MEMORANDUM.
The order appealed from should be reversed and the matter remitted for a determination of the issue raised by the article 78 proceeding.
The Appellate Division erred in concluding that the order of Special Term, which directed that petitioner's suspension should be one with pay until the completion of the disciplinary hearing on the charges against him, was nonfinal. The petition was one aimed only at challenging the payless suspension. Special Term, having ordered petitioner to be paid during the suspension, resolved the entire proceeding and no action other than the purely ministerial one involved in restoring petitioner to the payroll remained to be taken by the commission.
Nor does the fact that the disciplinary hearing was still pending before the commission at the time render the order nonfinal (see, e.g., Matter of Board of Educ. v Nyquist, 48 N.Y.2d 97; Matter of Jerry v Board of Educ., 35 N.Y.2d 534; Cohen and Karger, Powers of the New York Court of Appeals, § 31, pp 127-128). In this regard, we note that any challenge to the outcome of the hearings would have to be brought by way of an independent article 78 proceeding (cf. Matter of Sofair v State Univ. of N.Y. Upstate Med. Center Coll. of Medicine, 44 N.Y.2d 475, 479).
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order reversed, with costs, and the matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.