Hoeve v. Board of Education

New York Court of Appeals

Hoeve v. Board of Education

478 N.E.2d 200, 64 N.Y.2d 1036, 489 N.Y.S.2d 59, 1985 N.Y. LEXIS 16948

CourtNew York Court of Appeals

DecidedApril 4, 1985

StatusPublished

Cited by1 cases

This text of 478 N.E.2d 200 (Hoeve v. Board of Education) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hoeve v. Board of Education, 478 N.E.2d 200, 64 N.Y.2d 1036, 489 N.Y.S.2d 59, 1985 N.Y. LEXIS 16948 (N.Y. 1985).

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Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division is reversed, with costs, plaintiff’s motion for summary judgment denied, and the matter [1038]*1038remitted to Supreme Court, Albany County, to determine whether age is a bona fide occupational qualification for school bus drivers and plaintiff’s entitlement to back pay and other benefits, if any, which may have resulted from his involuntary retirement at age 65.

Plaintiff is a former school bus driver who was compelled to retire by defendant Board of Education of Dundee Central School District when he reached 65 years of age. Retirement was mandated by rule 156.3 [b] (8 NYCRR) which provides that school bus drivers must be at least 21 but not more than 65 years of age. The rule was promulgated by defendant Commissioner pursuant to the authority of Education Law § 3624 which authorizes him to “determine and define” the qualifications of school bus drivers. Supreme Court held the regulation unconstitutional and ordered plaintiff reinstated. The Appellate Division held the regulation constitutional, citing Vance v Bradley (440 US 93), but ruled that it conflicted with Retirement and Social Security Law § 501 (15) which, as then written, established 70 as the mandatory retirement age. Accordingly, it modified Supreme Court’s order to grant plaintiff partial summary judgment declaring that in the absence of an offer of alternative employment the regulation violated plaintiff’s statutory rights.

During the pendency of this appeal, the Laws of 1984 (ch 296) became law. It amended the Retirement and Social Security Law and Executive Law § 296 (3-a) to permit termination of employment because of age if age is a bona fide occupational qualification “reasonably necessary” to the performance of the employee’s duties (see, Retirement and Social Security Law § 530 [c]; Executive Law § 296 [3-a] [d]). The amendments apply to this litigation (Post v 120 E. End Ave. Corp., 62 NY2d 19, 29; Mayer v City Rent Agency, 46 NY2d 139, 149) and require remittitur for a determination of whether age is a bona fide occupational qualification for school bus drivers and plaintiff’s entitlement to back pay and other benefits, if any, which may have resulted from his involuntary retirement at age 65.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order reversed, with costs, plaintiff’s motion for summary judgment denied, and case remitted to Supreme Court, Albany County, for further proceedings in accordance with the memorandum herein.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division is reversed, with costs, plaintiff’s motion for summary judgment denied, and the matter [1038]*1038remitted to Supreme Court, Albany County, to determine whether age is a bona fide occupational qualification for school bus drivers and plaintiff’s entitlement to back pay and other benefits, if any, which may have resulted from his involuntary retirement at age 65.

Plaintiff is a former school bus driver who was compelled to retire by defendant Board of Education of Dundee Central School District when he reached 65 years of age. Retirement was mandated by rule 156.3 [b] (8 NYCRR) which provides that school bus drivers must be at least 21 but not more than 65 years of age. The rule was promulgated by defendant Commissioner pursuant to the authority of Education Law § 3624 which authorizes him to “determine and define” the qualifications of school bus drivers. Supreme Court held the regulation unconstitutional and ordered plaintiff reinstated. The Appellate Division held the regulation constitutional, citing Vance v Bradley (440 US 93), but ruled that it conflicted with Retirement and Social Security Law § 501 (15) which, as then written, established 70 as the mandatory retirement age. Accordingly, it modified Supreme Court’s order to grant plaintiff partial summary judgment declaring that in the absence of an offer of alternative employment the regulation violated plaintiff’s statutory rights.

During the pendency of this appeal, the Laws of 1984 (ch 296) became law. It amended the Retirement and Social Security Law and Executive Law § 296 (3-a) to permit termination of employment because of age if age is a bona fide occupational qualification “reasonably necessary” to the performance of the employee’s duties (see, Retirement and Social Security Law § 530 [c]; Executive Law § 296 [3-a] [d]). The amendments apply to this litigation (Post v 120 E. End Ave. Corp., 62 NY2d 19, 29; Mayer v City Rent Agency, 46 NY2d 139, 149) and require remittitur for a determination of whether age is a bona fide occupational qualification for school bus drivers and plaintiff’s entitlement to back pay and other benefits, if any, which may have resulted from his involuntary retirement at age 65.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order reversed, with costs, plaintiff’s motion for summary judgment denied, and case remitted to Supreme Court, Albany County, for further proceedings in accordance with the memorandum herein.

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Bluebook (online)

478 N.E.2d 200, 64 N.Y.2d 1036, 489 N.Y.S.2d 59, 1985 N.Y. LEXIS 16948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoeve-v-board-of-education-ny-1985.

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