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In Re Diana Hrisinko v. Board of Education of the City School District of the City of New York

New York Supreme and/or Appellate Courts Appellate Division, First Department


December 6, 2012

IN RE DIANA HRISINKO, PETITIONER-APPELLANT,
v.
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, ET AL.,
RESPONDENTS-RESPONDENTS.

Appeal from order, Supreme Court, New York County (Joan B. Lobis, J.), entered August 19, 2011, which denied petitioner's motion for an order holding respondents in contempt of an order, same court (Marilyn G. Diamond, J.), entered March 3, 2010 (the prior order), unanimously dismissed, without costs.

Matter of Matter of Hrisinko v Board of Educ. of the City Sch. Dist. of the City of New York

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 6, 2012

Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam, Feinman, JJ.

The 2011 order is not appealable as of right, as it was "made in a proceeding against a body or officer pursuant to [CPLR] article 78" (CPLR 5701[b][1]; see Matter of Storman v New York City Dept. of Educ., 95 AD3d 776, 777 [1st Dept 2012], appeal dismissed 19 NY3d 1023 [2012]). We decline to grant petitioner leave to appeal from that order in the interest of justice.

Were we to review the 2011 order, we would find that the motion court providently exercised its discretion in holding that respondents should not be held in contempt (see Storman, 95 AD3d at 777; Richards v Estate of Kaskel, 169 AD2d 111, 122 [1st Dept 1991], lv dismissed in part, denied in part 78 NY2d 1042 [1991]). Although the prior order declared that petitioner had "been a tenured teacher of Commercial Art'" since September 2, 2005, it did not reference the "Commercial Art" position, or any other specific teaching assignment, in its mandate, instead directing only that petitioner be reinstated "to her position as a tenured teacher." "Any ambiguity in the court's mandate should be resolved in favor of the would-be contemnor" (Kaskel, 169 AD2d at 122). Accordingly, we find that, in reinstating petitioner to the position of tenured teacher and assigning her to serve as an absent teacher reserve, respondents did not violate any "clear and unequivocal" mandate (Storman, 95 AD3d at 777 [internal quotation marks omitted]; see Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d 233, 240 [1987]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 6, 2012

CLERK

20121206

© 1992-2012 VersusLaw Inc.



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