Marland v. Ambach

450 N.E.2d 228, 59 N.Y.2d 711, 463 N.Y.S.2d 422, 1983 N.Y. LEXIS 3079

Opinion

OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs, for the reasons stated in the opinion of Justice Ann T. Mikoll at the Appellate Division (79 AD2d 48).

We would only add that because there is sufficient evidence in the record to support the factual determination that petitioner’s retirement was involuntary, the issue is beyond our power to review. (CPLR 5501, subd [b]; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 108, pp 452-455; see, also, Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1, 5.) Additionally, with respect to the issue of back pay, contrary to respondents’ assertions, there is no rule prohibiting the courts from awarding back pay to a probationary teacher, such as petitioner, who has been denied contractual procedural rights affecting her ability to contest her discharge from employment. (See Ricca v Board of Educ., 47 NY2d 385, 394.) Under the circumstances present here, the award of back pay was proper.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.