Schwab v. Bowen , 41 N.Y. 907 ( 1977 )

Memorandum. Order affirmed, with costs. The issues raised in this proceeding, if they were otherwise still available to petitioners, have been largely determined by this court after leave to appeal had been granted in this case (see Matter of Burke v Bowen, 40 NY2d 264, 267; cf. Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268, 275276). Most important, the collective bargaining agreement under which petitioners assert their claims expired June 30, 1975 thus terminating on any theory the right to reinstatement to their former positions. Reinstatement is the primary relief sought in this proceeding and the primary relief they persist in claiming on appeal to this court.

Damages may not be awarded in this proceeding because damages, if any, would not be incidental to primary relief (CPLR 7806). This determination is without prejudice, of course, to any other action petitioners may be advised to take (see Matter of Burke v Bowen, supra, p 267). Since more than improper form of proceeding is involved, and, moreover, petitioners do not ask for such relief in the alternative, the court does not apply the ameliorative provision of CPLR 103 (subd [c]) to convert this special proceeding.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.