Matter of Zarinfar v. Board of Educ. of the City Sch. Dist. of the City of N.Y.

Appellate Division of the Supreme Court of New York

Matter of Zarinfar v. Board of Educ. of the City Sch. Dist. of the City of N.Y.

127 A.D.3d 496, 4 N.Y.S.3d 530

Appellate Division of the Supreme Court of the State of New York·Decided April 9, 2015·No. 14754 116457/10·Published

Opinion

Appeal from order, Supreme Court, New York County (Lucy Billings, J.), entered October 30, 2013, which granted the petition to annul respondents’ determination terminating petitioner’s probationary employment, effective August 30, 2010, and reinstating him to his teaching position with retroactive compensation and related entitlements, to the limited extent of granting a further hearing, in this proceeding brought pursuant to CPLR article 78, unanimously dismissed, without costs.

A nonfinal order made in an article 78 proceeding is not appealable as of right because the final judgment that ends the proceeding will be appealable as of right and will bring up for review any nonfinal order that necessarily affects the judgment (see CPLR 5701 [b] [1]; Matter of Spedicato v New York State Div. of Hous. & Community Renewed, 241 AD2d 343, 344 [1st Dept 1997]).

Here, the order, which is nonfinal, did not finally determine whether petitioner’s claim that his termination from the probationary employment was for a constitutionally impermissible reason, violative of statute or in bad faith, in that the court directed a further hearing as to his discrimination claim. Since this appeal addresses that claim, it is premature.

Concur — Tom, J.P., Sweeny, Renwick and Andrias, JJ.

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Appeal from order, Supreme Court, New York County (Lucy Billings, J.), entered October 30, 2013, which granted the petition to annul respondents’ determination terminating petitioner’s probationary employment, effective August 30, 2010, and reinstating him to his teaching position with retroactive compensation and related entitlements, to the limited extent of granting a further hearing, in this proceeding brought pursuant to CPLR article 78, unanimously dismissed, without costs.

A nonfinal order made in an article 78 proceeding is not appealable as of right because the final judgment that ends the proceeding will be appealable as of right and will bring up for review any nonfinal order that necessarily affects the judgment (see CPLR 5701 [b] [1]; Matter of Spedicato v New York State Div. of Hous. & Community Renewed, 241 AD2d 343, 344 [1st Dept 1997]).

Here, the order, which is nonfinal, did not finally determine whether petitioner’s claim that his termination from the probationary employment was for a constitutionally impermissible reason, violative of statute or in bad faith, in that the court directed a further hearing as to his discrimination claim. Since this appeal addresses that claim, it is premature.

Concur — Tom, J.P., Sweeny, Renwick and Andrias, JJ.

Matter of Zarinfar v. Board of Educ. of the City Sch. Dist. of the City of N.Y., 127 A.D.3d 496, 4 N.Y.S.3d 530 (N.Y. Ct. App. 2015).

Pincite

127 A.D.3d 496 (Matter of Zarinfar v. Board of Educ. of the City Sch. Dist. of the City of N.Y.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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