Summary
holding " discharged public employee cannot recover back pay unless he proves his right to the position from which he was discharged in a proceeding pursuant to CPLR article 78"
Summary of this case from Finley v. GiacobbeOpinion
May 5, 1986
Appeal from the Supreme Court, Kings County (Morton, J.).
Order affirmed, with costs.
In February 1981 the plaintiff commenced working as a probationary teacher at Public School No. 225 in Queens County. In May 1981, after viewing the plaintiff in the classroom and finding his work unsatisfactory, the District Superintendent informed the plaintiff by letter that he should immediately take a leave of absence without pay until February 1982, at which time he should retire. This, the plaintiff did.
In June 1983 the plaintiff commenced an action to recover lost wages for the school years 1981 through 1984. The defendant Board moved for summary judgment on the ground that the suit was time barred since the plaintiff was required to bring a timely proceeding pursuant to CPLR article 78 to challenge any action taken by it.
A discharged public employee cannot recover back pay unless he proves his right to the position from which he was discharged in a proceeding pursuant to CPLR article 78 (see, Austin v Board of Higher Educ., 5 N.Y.2d 430; Piro v Bowen, 76 A.D.2d 392; see also, Matter of Golomb v Board of Educ., 92 A.D.2d 256). Although the plaintiff was not technically discharged, the actions by the District Superintendent compelling him to take a leave of absence and then retire, and his later refusal to permit the plaintiff to return to work, should have been challenged pursuant to CPLR article 78. The plaintiff is time barred from maintaining such a proceeding and therefore cannot maintain an action for damages. Lawrence, J.P., Eiber, Kunzeman and Kooper, JJ., concur.