Oshinsky v. Nicholson

55 A.D.2d 619, 389 N.Y.S.2d 410, 1976 N.Y. App. Div. LEXIS 15346

Opinion

In a proceeding commenced pursuant to CPLR article 78 to compel appellants to convene a hearing to review the termination of petitioner’s employment, in which a judgment was entered in favqr of petitioner on October 1, 1975, the appeal (by permission) is from an order of the Supreme Court, Nassau County, dated January 27, 1976, which denied appellants’ application to vacate the said judgment (misdescribed as an order in the order appealed from). Order reversed, on the law and in the interest of justice, without costs or disbursements, motion granted, and the article 78 proceeding is converted into an action to compel specific performance of a contract. The time within which plaintiff, heretofore the petitioner, may serve his complaint is extended until 20 days after entry of the order to be made hereon. Private contractual rights may not be resolved in CPLR article 78 proceedings seeking relief in the nature of mandamus (Matter of Corbeau Constr. Corp. v Board of Educ., 32 AD2d 958). Our determination that petitioner prosecuted his action in an improper form and requested relief to which he is not entitled does not, however, serve to put him out of court. CPLR 103 (subd [c]) provides that once a court has obtained jurisdiction over the parties in a "civil judicial proceeding” the proceeding "shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution” (see Matter of Phalen v Theatrical Protective Union No. 1, 22 NY2d 34). Cohalan, Acting P. J., Rabin, Shapiro and O’Connor, JJ., concur.