Wolfson v. Board of Education , 47 A.D.2d 748 ( 1975 )

In a proceeding pursuant to CPLR article 78 in which petitioner, a tenured teacher in respondent’s employ, seeks, inter alla, (1) restoration to- his position or to an appropriate post pending resolution of the charges against him and (2) restoration of salary and back-pay retro-' active to February 8,1974, petitioner appeals from a judgment of the Supremo Court, Dutchess County, dated September 3, 1974, which, inter alia, dismissed the petition on the merits. Judgment modified, on the law, by (1) deleting the second and .third decretal paragraphs thereof and (2) deleting therefrom the words following the word “ denied ” iri the first decretal paragraph thereof and substituting therefor the following: “except that the petition is granted to the limited extent of directing that (a) petitioner receive back pay withheld, from him; subject to an offset to the extent of any compensation earned by him during the period in which such back pay was withheld, and (b) any fringe benefits which may have been canceled be reinstated forthwith.” As so modified, judgment affirmed, without costs. The petition was improperly dismissed, since section 3020-a of the Education Law, as presently drafted, does not authorize suspension of a tenured teacher without pay (Matter of Jerry v. Board of Edite. of the City of Syracuse, 35 N Y 2d 534). Consequently, petitioner is entitled to the back pay which has been withheld from him, subject to an offset of compensation earned by him during the period in which back pay was withheld. In addition, petitioner alleged that certain' fringe benefits had been canceled. The record is somewhat- ambiguous in this regard. Nevertheless, if they were in fact canceled, they should be reinstated forthwith. Martuscello, Acting P. J., Cohalan, Christ, Brennan and Benjamin. JJ., concur.