In the Matter of Majid Zarinfar, Appellant, v. Board of Education of the City School District of the City of New York et al., Respondents

In the Matter of Majid Zarinfar, Appellant, v Board of Education of the City School District of the City of New York et al., Respondents. [4 NYS3d 530] [MAJORITY] Appeal from order, Supreme Court, New York County (Lucy Billings, J.), entered October 30, 2013, which granted the petition to annul respondents’ determination terminating petitioner’s probationary employment, effective August 30, 2010, and reinstating him to his teaching position with retroactive compensation and related entitlements, to the limited extent of granting a further hearing, in this proceeding brought pursuant to CPLR article 78, unanimously dismissed, without costs. A nonfinal order made in an article 78 proceeding is not appealable as of right because the final judgment that ends the proceeding will be appealable as of right and will bring up for review any nonfinal order that necessarily affects the judgment (see CPLR 5701 [b] [1]; Matter of Spedicato v New York State Div. of Hous. & Community Renewed, 241 AD2d 343, 344 [1st Dept 1997]). Here, the order, which is nonfinal, did not finally determine whether petitioner’s claim that his termination from the probationary employment was for a constitutionally impermissible reason, violative of statute or in bad faith, in that the court directed a further hearing as to his discrimination claim. Since this appeal addresses that claim, it is premature. Concur — Tom, J.P., Sweeny, Renwick and Andrias, JJ.