Lester v. Harris

Order unanimously reversed, without costs, motion granted and complaint dismissed. Memorandum: Plaintiff was employed annually as a school bus driver. By notice dated May, 1975 she was reappointed for the school year 1975-1976 and accepted that reappointment. However, on June 26, 1975 she was advised in writing that her services were terminated because of her difficulty in controlling students on the bus. On October 30, 1975 she brought this common-law action for breach of contract to recover her salary for the year 1975-1976. Appellants moved to dismiss the complaint for failure to state a cause of action. The parties agree that plaintiff may be terminated without the hearing for protected employees required pursuant to the provisions of the Civil Service Law (see Matter of Brown v North Syracuse Cent. School Dist., 55 AD2d 813). Upon the facts of this case, if plaintiff was entitled to any relief her remedy was an article 78 proceeding initiated within four months of her discharge demanding reinstatement and back pay. Appellants’ motion to dismiss the complaint should be granted (Austin v Board of Higher Educ. of City of N. Y., 5 NY2d 430). (Appeal from order of Monroe Supreme Court—dismiss complaint.) Present —Moule, J. P., Cardamone, Simons, Hancock, Jr., and Denman, JJ.