BRODERICK v. BOARD OF EDUCATION ROOSEVELT UNION FREE SCHOOL DISTRICT

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Supreme Court, Appellate Division, Second Department, New York.

John BRODERICK, Respondent, v. BOARD OF EDUCATION, ROOSEVELT UNION FREE SCHOOL DISTRICT, et al., Appellants.

Decided: September 28, 1998

BRACKEN, J.P., ROSENBLATT, RITTER and FLORIO, JJ. Ehrlich, Frazer & Feldman, Garden City, N.Y. (Jacob S. Feldman and James H. Pyun of counsel), for appellants. Zumbrunn & Hand, Babylon, N.Y. (Richard C. Hand of counsel), for respondent.

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from so much of an order of the Supreme Court, Suffolk County (Stark, J.), entered February 26, 1997, as denied that branch of their motion which was for summary judgment dismissing the first six causes of action asserted in the amended verified complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the branch of the motion which was for summary judgment dismissing the first six causes of action asserted in the amended verified complaint is granted, and the complaint is dismissed.

The plaintiff's first five causes of action sought to recover damages for loss of salary and benefits, based on the defendants' failure to appoint him as a full-time teacher, on the grounds of breach of contract, unjust enrichment, and quantum meruit.   The sixth cause of action sought an injunction enjoining the defendants “from continuing to fail * * * to certify him as a full-time employee”.

 The plaintiff's claims sounding in breach of contract, unjust enrichment, and quantum meruit, viewed together with the demand for injunctive relief, present “the classic formulation of an article 78 proceeding” (Foster v. City of New York, 157 A.D.2d 516, 518, 549 N.Y.S.2d 707) since the gravamen of the claims was that the defendants improperly failed to appoint him as a full-time teacher (see, Board of Educ. v. Ambach, 49 N.Y.2d 986, 429 N.Y.S.2d 167, 406 N.E.2d 1061, cert. denied 449 U.S. 874, 101 S.Ct. 216, 66 L.Ed.2d 95;  Clissuras v. City of New York, 131 A.D.2d 717, 517 N.Y.S.2d 39, cert. denied 484 U.S. 1053, 108 S.Ct. 1003, 98 L.Ed.2d 970;  Foster v. City of New York, supra).   Accordingly, although the plaintiff did not assert his claims in the form of a proceeding pursuant to CPLR article 78, those claims are governed by the four-month Statute of Limitations of CPLR 217.   Since this action was commenced on June 16, 1994, and the defendants' last action regarding the plaintiff's application was on September 22, 1993, the plaintiff's claims are time-barred.

MEMORANDUM BY THE COURT

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