O'Hara v. Bd. of Educ.

• Decision Date: 20 October 2021
• Docket Number: 2018–13279,Index No. 52113/18
• Citation: 198 A.D.3d 896,156 N.Y.S.3d 311
• Parties: In the Matter of Melissa A. O'HARA, etc., appellant-respondent, v. BOARD OF EDUCATION, YONKERS CITY SCHOOL DISTRICT, et al., respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

198 A.D.3d 896
156 N.Y.S.3d 311

In the Matter of Melissa A. O'HARA, etc., appellant-respondent,
v.
BOARD OF EDUCATION, YONKERS CITY SCHOOL DISTRICT, et al., respondents-Appellants.

2018–13279
Index No. 52113/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 1, 2021
October 20, 2021

156 N.Y.S.3d 313

Gleason, Dunn, Walsh & O'Shea, Albany, N.Y. (Ronald G. Dunn and Daniel A. Jacobs of counsel), for appellant-respondent.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, White Plains, N.Y. (Robert A. Spolzino and Jacob E. Amir of counsel), for respondents-appellants.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, PAUL WOOTEN, JJ.

DECISION & ORDER

In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Board of Education, Yonkers City School District, dated October 12, 2017, which terminated the petitioner/plaintiff's decedent's employment as Director of Transportation, and action pursuant to Civil Service Law § 75–b, among other things, to reinstate the petitioner/plaintiff's decedent to the position of Director of Transportation, the petitioner/plaintiff appeals, and the Board of Education, Yonkers City School District, Yonkers City School District, and Luisa Erika Lassi cross-appeal, from an order and judgment (one paper) of the Supreme Court, Westchester County (George E. Fufidio, J.), dated October 31, 2018. The order and judgment, insofar as appealed from, (1) granted that branch of the motion of the Board of Education, Yonkers City School District, Yonkers City School District, and Luisa Erika Lassi which was pursuant to CPLR 3211(a) to dismiss the first cause of action, and dismissed that cause of action, and (2), in effect, dismissed the third cause of action. The order and judgment, insofar as cross-appealed from, (1) denied that branch of the motion of the Board of Education, Yonkers City School District, Yonkers City School District, and Luisa Erika Lassi which was pursuant to CPLR 3211(a) to dismiss the second cause of action, granted that cause of action, annulled the determination, and directed that the petitioner/plaintiff's decedent be reinstated to the position of Director of Transportation as a permanent employee, with back pay and benefits, and (2) denied that branch of their motion which was to dismiss the third cause of action.

ORDERED that the order and judgment is modified, on the law, (1) by deleting the provisions thereof granting that branch of the motion of the Board of Education, Yonkers City School District, Yonkers City School District, and Luisa Erika Lassi which was pursuant to CPLR 3211(a) to dismiss the first cause of action and dismissing that cause of action, and substituting therefor a provision denying that branch of the motion, (2) by deleting

156 N.Y.S.3d 314

the provisions thereof granting the second cause of action, annulling the determination of the Board of Education, Yonkers City School District, and directing that the petitioner/plaintiff's decedent be reinstated to the position of Director of Transportation, as a permanent employee, with back pay and benefits, and (3) by deleting the provision thereof, in effect, dismissing the third cause of action; as so modified, the order and judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, the first and third causes of action are reinstated, and the matter is remitted to the Supreme Court, Westchester County, for the service and filing of an answer and the administrative record within 20 days after the date of this decision and order, and for further proceedings on the petition/complaint consistent herewith.

Shelley A. O'Riley was employed by the Yonkers School District (hereinafter the school district) as its Director of Transportation. After serving in the position on a temporary basis from August 31, 2015, through November 19, 2015, and later on a provisional basis from November 20, 2015, through April 20,...