Pauk v. Board of Trustees

New York Court of Appeals

Pauk v. Board of Trustees

497 N.E.2d 675, 68 N.Y.2d 702, 506 N.Y.S.2d 308, 1986 N.Y. LEXIS 19477

New York Court of Appeals·Decided July 3, 1986·Published·Cited by 37 cases

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated by that court (111 AD2d 17). We add only that, had he prevailed on appeal in the prior article 78 proceeding, plaintiff could have been awarded the loss of salary he is currently seeking, calculated from the date he was no longer employed at Queens College to the date of reinstatement. Under CPLR 7806, the lost salary would have been "incidental to the primary relief sought by petitioner”, i.e., rescission of the letter terminating his employment and an order declaring him to be a tenured member of the Queens [705]*705College faculty (cf. Matter of Schwab v Bowen, 41 NY2d 907, 908 [damages could not be awarded because primary relief of reinstatement was no longer available to which damages would have been incidental]; but cf. also, Davidson V Capuano, 792 F2d 275 [compensatory and punitive damages and attorney’s fees plaintiff is seeking under 42 USC § 3988 cannot be deemed incidental to relief plaintiff was swa^fied in prior article 78 proceeding]). Whether damages are "incidental to the primary relief sought” depends upon the facts of the case (see, Matter of Schwab, supra).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Hancock, Jr., concur; Judge Titone taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated by that court (111 AD2d 17). We add only that, had he prevailed on appeal in the prior article 78 proceeding, plaintiff could have been awarded the loss of salary he is currently seeking, calculated from the date he was no longer employed at Queens College to the date of reinstatement. Under CPLR 7806, the lost salary would have been "incidental to the primary relief sought by petitioner”, i.e., rescission of the letter terminating his employment and an order declaring him to be a tenured member of the Queens [705]*705College faculty (cf. Matter of Schwab v Bowen, 41 NY2d 907, 908 [damages could not be awarded because primary relief of reinstatement was no longer available to which damages would have been incidental]; but cf. also, Davidson V Capuano, 792 F2d 275 [compensatory and punitive damages and attorney’s fees plaintiff is seeking under 42 USC § 3988 cannot be deemed incidental to relief plaintiff was swa^fied in prior article 78 proceeding]). Whether damages are "incidental to the primary relief sought” depends upon the facts of the case (see, Matter of Schwab, supra).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Hancock, Jr., concur; Judge Titone taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.

Pauk v. Board of Trustees, 497 N.E.2d 675, 68 N.Y.2d 702, 506 N.Y.S.2d 308, 1986 N.Y. LEXIS 19477 (N.Y. 1986).

Pincite

497 N.E.2d 675 (Pauk v. Board of Trustees) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Thomas Burka Eugene Avent Frank Doe Tracey Devlin Fitzgerald Cumberbatch and Felix Arce, James Salazar, Plaintiff-Intervenor v. New York City Transit Authority David L. Gunn, Individually and in His Official Capacity as President of the New York City Transit Authority, and His Successors in Office Robert F. Kiley, Individually and in His Official Capacity as Chairman of the New York City Transit Authority, and His Successors in Office Brian Frohlinger, Individually and in His Official Capacity as Assistant Vice President, Labor Relations for the New York City Transit Authority, and His Successors in Office and Monica Benjamin, Individually and in Her Official Capacity as the Medical Director of the New York City Transit Authority, and Her Successors in Office, John Gray v. New York City Transit Authority

32 F.3d 654 (Second Circuit, 1994)

Opinion

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