Prima facie showing that bad faith underlies the basis for termination sufficient to defeat the employer’s motion to dismiss the action
Supreme Court vacated the board of education’s determination terminating a school teacher and remanded the matter for a “new investigation and hearing under the auspices of a different investigator nunc pro tunc* and sub silentio".**Supreme Court also denied the board’s motion to dismiss its former employee’s petition.
The Appellate Division vacated the lower court ruling in part, directing the employer to serve an answer within 20 days of service it being served with a copy of its ruling.
The Appellate Division explained that the former employee “has sufficiently alleged that the investigator from the board’s Office of Special Investigations acted in bad faith in making the determination that formed the basis for [the board's] terminating [the former employee]” and the board’s motion to dismiss its former employee's petition was properly denied.
However, said the court, “the motion court erred in determining the merits of the proceeding without affording [the school board] an opportunity to serve an answer upon the denial of its motion to dismiss,” citing Samuel v Ortiz, 105 AD2d 624.
* Latin for “to make a new decision which, presumably, would be applied “retroactive.”
** Latin for “without notice (of the earllier record) being taken.”
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06882.htm