Parrotta v. Board of Education, Sewanhaka Central High School District

Majority

p. 858

In the Matter of Rocco M. Parrotta, Petitioner, v Board of Education, Sewanhaka Central High School District of Elmont, Floral Park, Franklin Square and New Hyde Park, Respondent.

Proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent, dated August 24, 1976, which, after a hearing, found petitioner guilty of certain charges of misconduct and dismissed him from his employment as a teacher of special education. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. In our view, respondent’s determination was supported by substantial evidence. Since petitioner failed to file a notice of appeal from the order of the Supreme Court, Nassau County, dated March 28, 1977, which, inter alia, dismissed his claim for back pay after the expiration of his sick leave benefits upon the ground that the four-month Statute of Limitations had run on that claim, that order may not be reviewed by this court. Although CPLR 7804 (subd [g]) provides that "When the proceeding comes before it, whether by appeal or transfer, the appellate division shall dispose of all

p. 859

issues in the proceeding”, we construe that provision to refer to instances in which the Special Term erroneously transfers to the Appellate Division issues which it should have decided (see, e.g., Matter of 125 Bar Corp. v State Liq. Auth., 24 NY2d 174 , 180). We know of no authority which permits this court, in the absence of a notice of appeal, to review a dispositive order of the Special Term concerning issues which were properly before that court. The only issue before us is the one transferred to us by the Special Term, namely, whether the determination under review was supported by substantial evidence on the record as a whole. Latham, J. P., Damiani, Cohalan and Hawkins, JJ., concur.

Cases cited

125 Bar Corp. v. State Liquor Authority 24 NY2d 174 N.Y. 1969-03-06 at 180 p. 859