Koegan v. Yunich 51 A.D.2d 744

In a proceeding pursuant to CPLR article 78 inter alia to review respondent’s determination, dated April 22, 1974 and made after a hearing, which dismissed petitioner from his position as a railroad clerk, petitioner appeals from a judgment of the Supreme Court, Kings County, dated March 14, 1975, which dismissed the petition. Judgment reversed, on the law, with costs, determination annulled, and respondent is directed to pay petitioner his salary for the period commencing 30 days after the date of his suspension and ending on the date of his retirement, March 24, 1974. Respondent, with full knowledge of the circumstances, having permitted petitioner to retire, was thereafter without jurisdiction to dismiss him (cf. Matter of Pierne v Valentine, 291 NY 333). Moreover, since petitioner was not afforded a timely disciplinary hearing, he is entitled to back pay for that period of his suspension which was in excess of 30 days (see Civil Service Law, § 75, subd 3; Matter of Maurer v Cappelli, 42 AD2d 758, 759). Given petitioner’s retirement, we are without the authority to order his reinstatement. Petitioner’s breach of contract claim is simply not reviewable by way of an article 78 proceeding (see Matter of Corbeau Constr. Corp. v Board of Educ., Union Free School Dist. No. 9, Town of Greenburgh, 32 AD2d 958). In any event, the claimed breach, i.e., respondent’s dismissal of petitioner, has been cured by our determination herein. Gulotta, P. J., Hopkins, Martuscello, Latham and Shapiro, JJ., concur.