Lamagna v. New York State Ass'n for the Help of Retarded Children, Inc.

205 A.D.2d 594, 614 N.Y.S.2d 293, 1994 N.Y. App. Div. LEXIS 6186

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 1994
• Status: Published

Opinion

In an action to recover damages for wrongful termination of employment, the defendants appeal from an order of the Supreme Court, Nassau County (McCarty, J.), dated July 23, 1992, which granted the plaintiff’s motion for summary judgment as to liability with respect to the second cause of action in the complaint.

Ordered that the order is affirmed, with costs.

We agree with the Supreme Court that the plaintiff was denied his right to due process as a matter of law based upon his dismissal by the defendants without notice and opportunity to respond prior to his discharge, as required by 14 NYCRR 690.4 (see, Cleveland Bd. of Educ. v Loudermill, 470 US 532, 538; Matter of Prue v Hunt, 78 NY2d 364; McCreery v Babylon Union Free School Dist., 827 F Supp 136, 138; 14 NYCRR 690.4 [c] [6] [iv]). We also agree with the Supreme Court that, under the circumstances of this case, the plaintiff was not required to exhaust the post-termination procedures provided by the defendants (see, Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52, 57). Sullivan, J. P., Balletta, Joy and Friedmann, JJ., concur.