Van Buskirk v. Odessa-Montour Central School District

50 A.D.2d 969, 376 N.Y.S.2d 48, 1975 N.Y. App. Div. LEXIS 11927

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 1975
• Status: Published

Opinion

— Appeal from an order of the Supreme Court at Special Term, entered October 3, 1974 in Schuyler County, which granted defendant’s motion for summary judgment dismissing the complaint. Plaintiff, John H. Van Buskirk, had been an employee of the OdessaMontour Central School District for a number of years when, on April 13, 1972, he was discharged from his position without a hearing by the unanimous vote of the board of education. Thereafter, he successfully challenged the propriety of his dismissal by instituting an article 78 proceeding which resulted in his reinstatement with back pay and other benefits in accordance with section 77 of the Civil Service Law. In the present action, both he and plaintiff Esther Van Buskirk, his wife, seek additional incidental damages arising out of his admittedly improper dismissal. We agree with Special Term’s grant of summary judgment. In an earlier action against the members of the board of education, individually (Van Buskirk v Bleiler, 46 AD2d 707), the instant plaintiffs also sought additional damages arising out of the wrongful dismissal herein, and we ruled there that the complaint was properly dismissed and held, inter alia, that the plaintiff husband had "already received all the relief he is entitled to under the common law and the Civil Service Law for being wrongfully discharged”. Accordingly, since the complaint in this action alleges, as the sole basis for recovery, only that the termination of the plaintiff husband’s employment was "illegal”, we find this quoted language controlling and affirm the order of Special Term. (See, also, Adler v Board of Educ. of City of N. Y, 33 Misc 2d 789, affd 18 AD2d 1053.) Order affirmed, without costs. Sweeney, J. P., Kane, Koreman, Main and Larkin, JJ., concur.