Golomb v. Board of Educ. of City School Dist. of City of New York

• Decision Date: 21 March 1983
• Citation: 460 N.Y.S.2d 805,92 A.D.2d 256
• Parties: , 10 Ed. Law Rep. 319 In the Matter of Mira GOLOMB, Appellant, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 805

460 N.Y.S.2d 805

92 A.D.2d 256, 10 Ed. Law Rep. 319

In the Matter of Mira GOLOMB, Appellant, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK et al., Respondents.

Supreme Court, Appellate Division Second Department.

March 21, 1983.

James R. Sandner, New York City (Elizabeth A. Truly, New York City, of counsel), for appellant.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Francis F. Caputo, New York City, and Larry A. Sonnenshein, Sparkill, of counsel), for respondents.

Before MANGANO, J.P., and GULOTTA, O'CONNOR and BRACKEN, JJ.

O'CONNOR, Justice.

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 A.D.2d 648, 404 N.Y.S.2d 645, affd. 55 N.Y.2d 840, 447 N.Y.S.2d 704, 432 N.E.2d 597, a petition seeking to recover such salary is by nature one to recover damages for breach of contract and that a judgment for such damages alone cannot be made under CPLR article 78.

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 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., Hudson City School Dist., 35 N.Y.2d 272, 360 N.Y.S.2d 869, 319 N.E.2d 189; Matter of Rathbone v. Board of Educ., Hamilton Cent. School Dist., 47 A.D.2d 172, 365 N.Y.S.2d 909, affd. on opn. at the App.Div. 41 N.Y.2d 825, 393 N.Y.S.2d 398, 361 N.E.2d 1046; see, generally, Sinicropi v. Bennett, App.Div., 460 N.Y.S.2d 809 [decided herewith] ) a probationary teacher does have certain rights. Primarily, a teacher is entitled to possession of a probationary position until ouster (whether suspension or removal) is lawfully effected, and the courts will enforce such entitlement in a special proceeding pursuant to CPLR article 78. In this regard, the only analytical distinction between a probationary teacher and a tenured teacher in respect of the specific remedy of reinstatement lies in the fact that the latter is entitled to hold a position during good behavior and is possessed of certain procedural rights established to secure that substantive right. A probationary teacher, on the other hand, merely has a right to hold a position until ousted in conformance with whatever procedures have been established for the orderly management of teaching personnel.

In this matter petitioner correctly argues, in essence, that by law (see Matter of Brown v. Board of Educ. of City of N.Y., 42 A.D.2d 702, 703, 345 N.Y.S.2d 595), 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 N.Y. 156, 89 N.E.2d 873; Matter of Rathbone v. Board of Educ., Hamilton Cent. School Dist., 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.)

Apparently the only unresolved question (of academic importance in most civil service back pay cases) was whether the recovery sought by the reinstated employee was of the specific res of unpaid salary made incident by law to the tenured position, or merely monetary restitution for the loss of the right to perform duties and to be compensated accordingly (see Manko v. City of Buffalo, 271 App.Div. 286, 65 N.Y.S.2d 128, affd. 296 N.Y. 905, 72 N.E.2d 623; Bean v. Clausen, 113 App.Div. 129, 99 N.Y.S. 44; cf. Howard v. Daly, 61 N.Y. 362, 368-370; 5 Corbin, Contracts, §§ 1095, 1110). By chapter 734 of the Laws of 1935 the Legislature abrogated the common law rule that a government employer's payment of salary to an usurper during a period of ouster constituted a defense against the true employee's claim, and imposed liability upon the employer to pay such salary, less outside earnings, upon reinstatement (see Civil Service Law, § 77; see, also, Education Law, § 3020-a). Although unpaid salary recoveries have commonly been referred to as damages (see, e.g., Matter of Mullane v. McKenzie, 269 N.Y. 369, 374-375, 199 N.E. 624; Matter of Adams v. New York State Civ. Serv. Comm., 51 A.D.2d 668, 378 N.Y.S.2d 171), it is not clear whether chapter 734 of the Laws of 1935 merely provided a remedy in damages for tenured civil servants who had been replaced during ouster, or whether it substituted a completely new system of compensatory damages for all tenured employees--even for those who had not been replaced and who therefore had (presumably) a common law right to specific performance of the duty to pay their salary without any deduction of outside earnings in mitigation under a contract theory of damages (see Kaminsky v. City of New York, 20 A.D.2d 692, 246 N.Y.S.2d 780; 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 persevering 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, etc., Vil. of Wappingers Falls, 151 N.Y. 386, 45 N.E. 852; People ex rel. Deverell v. M.M.P. Union, 118 N.Y. 101, 109, 23 N.E. 129; People ex rel. Aspinwall v. Supervisors of Richmond, 28 N.Y. 112; People ex rel. Solomon v. Brotherhood of Painters, etc., of America, 169 App.Div. 595, 155 N.Y.S. 438, revd. on other grounds 218 N.Y. 115, 112 N.E. 752; People ex rel. Walker v. Ahearn, 139 App.Div. 88, 92-93, 123 N.Y.S. 845). The consolidation of these former high prerogative writs into an article of the Civil Practice Act by chapter 526 of the Laws 1937 authorized recovery of damages for both in section 1300 thereof (...