| Matter of Longton v Village of Corinth |
| 2008 NY Slip Op 02063 [49 AD3d 995] |
| March 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jason W. Longton, Jr., Respondent, v Village ofCorinth et al., Appellants. |
—[*1] Gleason, Dunn, Walsh & O'Shea, Albany (Aron Z. Karabel of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Nolan, Jr., J.), entered March 23,2007 in Saratoga County, which partially granted petitioner's application, in a proceedingpursuant to CPLR article 78, to direct respondents to, among other things, award petitioner backpay and benefits.
Petitioner was suspended from his position as a police officer with respondent Village ofCorinth and, following a hearing, he was terminated. He commenced a CPLR article 78proceeding seeking various relief and, in June 2006, Supreme Court granted the petition,annulled the resolution under which petitioner was terminated and remanded the matter for a newhearing. Such relief was granted because respondents had failed to make a proper record of thehearing. After Supreme Court had annulled and remanded the matter, petitioner sought to bereinstated and receive back pay pending the new hearing. Respondents refused, prompting thissecond CPLR article 78 proceeding. Respondents contended that Supreme Court had necessarilydecided the issue of restoration and back pay against petitioner in the earlier proceeding.Supreme Court rejected this contention and granted the petition to the extent of awarding backpay subject to certain setoffs and continuing petitioner's pay until such time as he is either dulyterminated or reinstated. Respondents appeal.[*2]
Respondents argue on appeal that since a request for backpay was included among the many requests for relief in the original petition and Supreme Courtfailed to address that issue in its June 2006 decision, such issue was necessarily decided againstpetitioner. In support of this argument, respondents rely on the general proposition that a court'sfailure to rule on part of a motion "is deemed a denial of that part of the . . . motion"(Brown v U.S. Vanadium Corp., 198 AD2d 863, 864 [1993]; see Love v New York State ThruwayAuth., 17 AD3d 1000, 1002 [2005]; Barrett v Huff, 6 AD3d 1164, 1167-1168 [2004]). This general rulehad its origin in cases involving the failure of a trial court to rule on a motion during trial (seePeople v Bailey, 58 NY2d 272, 275 [1983]; Brenan v Moore-McCormack Lines, 3AD2d 1006, 1006 [1957]; see also Motyl v Motyl, 35 AD2d 1051, 1052 [1970]). Thecurrent case involves a CPLR article 78 proceeding where Supreme Court did not finally resolvethe matter but sent it back for a new hearing on a proper record. There is no reason under suchcircumstances to consider all of the various issues that were not addressed (and which did notneed to be addressed to provide the relief granted) to have been decided adversely to the partyadvancing such issues. Moreover, Supreme Court thereafter specifically explained that it had notconsidered the issue of back pay.
To the extent that respondents are still asserting that collateral estoppel applies, this assertionis without merit since the issue of back pay was neither decided nor essential to the decision inthe first petition (see e.g. Church v NewYork State Thruway Auth., 16 AD3d 808, 810-811 [2005]).
Cardona, P.J., Carpinello, Kane and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed, without costs.