Stein v. Board of Education

87 A.D.2d 514, 447 N.Y.S.2d 729, 1982 N.Y. App. Div. LEXIS 15752

Opinion

Judgment, Supreme Court, New York County (Scott, J.), entered August 7, 1980, in a proceeding under CPLR article 78, modified, in the exercise of discretion, to convert the fourth and fifth causes of action stated in the petition into causes of action at law for money damages claimed to have been suffered by petitioner by reason of failure to pay her at an appropriate salary level, and to remand those causes to Supreme Court, New York County, for prosecution therein, and otherwise affirmed, without costs. In addition to the fourth and fifth causes, petitioner sought relief for alleged failure to credit her with probationary service for substitute teaching, for a declaration that she was entitled to tenure of employment, and for reinstatement as a teacher of common branch subjects, and as a teacher of emotionally disturbed children. Special Term properly dismissed those other causes for failure to exhaust administrative remedies before seeking article 78 relief. But this requirement has no application to causes at law for money damages, which should survive Special Term’s disposition of the other causes. Accordingly, the fourth and fifth causes may be pursued as indicated. (CPLR 103, subd [c].) Concur — Sandler, J. P., Sullivan, Carro, Markewich and Lupiano, JJ.