Schwab v. Bowen

Decision Date22 March 1977
Citation394 N.Y.S.2d 616,363 N.E.2d 341,41 N.Y.2d 907
Parties, 363 N.E.2d 341, 95 L.R.R.M. (BNA) 2363 In the Matter of John SCHWAB et al., Appellants, v. Richard J. BOWEN, as City Manager of the City of Long Beach, et al., Respondents.
CourtNew York Court of Appeals Court of Appeals

F. James Woods, Garden City, for appellants.

Morris H. Schneider, Corporation Counsel, Long Beach (David Schlachter, Long Beach, of counsel), for respondents.

MEMORANDUM.

Order affirmed, with costs. The issues raised in this proceeding, if they were otherwise still available to petitioners, have been largely determined by this court after leave to appeal had been granted in this case (see Matter of Burke v. Bowen, 40 N.Y.2d 264, 267, 386 N.Y.S.2d 654, 656, 353 N.E.2d 567, 568; cf. Matter of Board of Educ. v. Yonkers Federation of Teachers, 40 N.Y.2d 268, 275-276, 386 N.Y.S.2d 657, 660, 353 N.E.2d 569, 572-573). Most important, the collective bargaining agreement under which petitioners assert their claims expired June 30, 1975 thus terminating on any theory the right to reinstatement to their former positions. Reinstatement is the primary relief sought in this proceeding and the primary relief they persist in claiming on appeal to this court.

Damages may not be awarded in this proceeding because damages, if any, would not be incidental to primary relief (CPLR 7806). This determination is without prejudice, of course, to any other action petitioners may be advised to take (see Matter of Burke v. Bowen, supra, 40 N.Y.2d p. 267, 386 N.Y.S.2d p. 656, 353 N.E.2d p. 568). Since more than improper form of proceeding is involved, and,...

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24 cases
  • Robinson v. Greene
    • United States
    • U.S. District Court — Western District of New York
    • 20 de agosto de 2007
  • Farid v. Smith
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 22 de junho de 1988
    ...state court lacked the plenary power to award damages. See N.Y.Civ.Prac.L. & R. 7806 (McKinney 1981); Schwab v. Bowen, 41 N.Y.2d 907, 908, 394 N.Y.S.2d 616, 617, 363 N.E.2d 341 (1977); Leisner v. Bahou, 97 A.D.2d 860, 861, 469 N.Y.S.2d 255, 258 (3d Dep't 1983), appeal dismissed, 61 N.Y.2d 9......
  • Williams v. Codd
    • United States
    • U.S. District Court — Southern District of New York
    • 24 de outubro de 1978
    ...Most important, damages are only available to a petitioner when they are "incidental to the primary relief." Schwab v. Bowen, 41 N.Y.2d 907, 394 N.Y.S.2d 616, 363 N.E.2d 341 (1977); Allen v. Eberling, 24 A.D.2d 594, 262 N.Y. S.2d 121, 122 (2d Dept. 1965). In Schwab v. Bowen, supra, the New ......
  • Saumell v. New York Racing Ass'n, Inc.
    • United States
    • U.S. District Court — Eastern District of New York
    • 18 de janeiro de 1985
    ...recoverable in an Article 78 proceeding and "more than improper form of proceeding was involved...." Schwab v. Bowen, 41 N.Y.2d 907, 908, 363 N.E.2d 341, 394 N.Y.S.2d 616, 617 (1977); Koppman v. Board of Education of the City School District, 95 A.D.2d 777, 463 N.Y.S.2d 390 (2d Dept.1983); ......
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