Tomlinson v. Board of Education

Appellate Division of the Supreme Court of New York

Tomlinson v. Board of Education

112 A.D.2d 576, 491 N.Y.S.2d 510, 1985 N.Y. App. Div. LEXIS 55926

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 11, 1985

StatusPublished

Cited by2 cases

This text of 112 A.D.2d 576 (Tomlinson v. Board of Education) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tomlinson v. Board of Education, 112 A.D.2d 576, 491 N.Y.S.2d 510, 1985 N.Y. App. Div. LEXIS 55926 (N.Y. Ct. App. 1985).

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Opinion

Appeal from a judgment of the Supreme Court at Special Term (Swartwood, J.), entered May 14, 1984 in Chemung County, which partially granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to require respondent to continue paying petitioner her full salary during a period of suspension.

Special Term determined that petitioner, a tenured teacher [577]*577in respondent’s school district, was entitled to receive her full salary during her suspension, reduced by any earnings petitioner had from outside employment, and that petitioner was required to provide respondent with written information, under oath, regarding the amounts earned. Respondent was permitted to withhold petitioner’s salary payments until such information was forthcoming.

We affirm for the reasons stated in the decision of Justice Charles B. Swartwood at Special Term.

Some three months after that decision was rendered, petitioner sought to have Special Term decide whether money earned by petitioner while school was in session, but after school hours, was also deductible, an issue neither raised in the petition nor advanced at oral argument. Although Special Term refused to rule on this issue, petitioner would now have us address it. We decline to do so. "[A] party may not urge grounds for appeal at the appellate level which were not first raised in the court of original instance” (Matter of Van Wormer v Leversee, 87 AD2d 942, 943). To preserve that issue, petitioner should have moved for renewal or reargument pursuant to CPLR 2221.

Judgment affirmed, without costs. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.

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Appeal from a judgment of the Supreme Court at Special Term (Swartwood, J.), entered May 14, 1984 in Chemung County, which partially granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to require respondent to continue paying petitioner her full salary during a period of suspension.

Special Term determined that petitioner, a tenured teacher [577]*577in respondent’s school district, was entitled to receive her full salary during her suspension, reduced by any earnings petitioner had from outside employment, and that petitioner was required to provide respondent with written information, under oath, regarding the amounts earned. Respondent was permitted to withhold petitioner’s salary payments until such information was forthcoming.

We affirm for the reasons stated in the decision of Justice Charles B. Swartwood at Special Term.

Some three months after that decision was rendered, petitioner sought to have Special Term decide whether money earned by petitioner while school was in session, but after school hours, was also deductible, an issue neither raised in the petition nor advanced at oral argument. Although Special Term refused to rule on this issue, petitioner would now have us address it. We decline to do so. "[A] party may not urge grounds for appeal at the appellate level which were not first raised in the court of original instance” (Matter of Van Wormer v Leversee, 87 AD2d 942, 943). To preserve that issue, petitioner should have moved for renewal or reargument pursuant to CPLR 2221.

Judgment affirmed, without costs. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.

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Bluebook (online)

112 A.D.2d 576, 491 N.Y.S.2d 510, 1985 N.Y. App. Div. LEXIS 55926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tomlinson-v-board-of-education-nyappdiv-1985.

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