21 A.D.2d 260 | N.Y. App. Div. | 1964
Lead Opinion
Judgment appealed from affirmed, without costs to either party. Subdivision 3 of section 75 of the Civil Service Law, insofar as pertinent, provides “ [p] ending the hearing and determination of charges of incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days.” The statute thereafter provides for possible penalties.
¡Respondent Amkraut was suspended from his position March 2,1961, at which time charges were filed against him. Hearings on the charges were held from time to time, the final hearing occurring May 2, 1961, with an order of dismissal dated May 31, 1961, in which appellant declared ‘ ‘ I hereby remove him [respondent] from office.” The determination was confirmed in this court (16 A D 2d 756, mot. for lv. to app. den. 11 N Y 2d 647, mot. for rearg. den. 12 N Y 2d 715).
Amkraut sued to recover payment of wages for the period of suspension in excess of 30 days prior to his dismissal. He claimed to be without fault in respect to the various adjournments and extensive delay in reaching a determination, and there was no evidence to the contrary. This appeal is taken from a judgment rendered in favor of Amkraut.
The single question is—May an employee suspended for a period in excess of 30 days, who is eventually discharged, recover wages for the excess period, when the delay in disposition was not occasioned by his fault?
The precise question has not been previously determined.
In Matter of Perry v. Mauhs (14 A D 2d 624 [3d Dept.]) where appellant’s conduct or misconduct caused the delay in proceeding with the hearings and eventual determination, the court affirmed the Commissioner’s denial of a motion to reopen the case.
In Paris v. City of New York (189 Misc. 445) the employee was suspended September 1, 1945, and the determination made September 29,1945, finding the employee guilty and suspending her, as the statute permitted (then Civil Service Law, § 22, subd. 2), for an additional period of two months. The suspension prior to determination did not exceed 30 days. And in Hagan v. City of Brooklyn (126 N. Y. 643) the court pointed out that a public officer, unlawfully removed from office to which another is appointed, who acquiesced in the removal and had not obtained an order of reinstatement, could not recover the salary therefor. That, however, is not the present case. Moreover, while there was no formal application for reinstatement in the case before us, the record does indicate that at the hearing on April 19,1961, Amkraut, by counsel, demanded of the hearing officer that he be restored with pay, effective as of April 1, 1961. The hearing Referee stated he would refer the matter to his superior and suggested also that counsel take up the demand elsewhere because the Referee doubted his authority as to that question. In Matter of Phinn v. Kross (26 Misc 2d 889, affd. 15 A D 2d 641) the court upheld as proper a dismissal nunc pro tunc upon a “ Redetermination of Punishment ” by the Commissioner of Correction, upon a remand by the Appellate Division. The court specifically held ‘ ‘ the redetermination may lawfully be made effective as of the date of the original determination ” (p. 895). In this case the dismissal was effective as of May 31, 1961.
Dissenting Opinion
Petitioner on July 5, 1955 was appointed a motor vehicle license examiner. He was suspended March 2, 1961 pending disciplinary charges. On May 31, 1961 petitioner was found guilty of soliciting and accepting gratuities from applicants and dismissed. The determination was confirmed (16 A D 2d 756, mot. for lv. to app. den. 11 N Y 2d 647, mot. for rearg. den. 12 N Y 2d 715). Nevertheless, petitioner has recovered a judgment for salary during the period of suspension in excess of 30 days. There is no legal basis therefor.
Salary is an incident of employment. (Van Valkenburgh v. Mayor of City of New York, 49 App. Div. 208 ; Matter of Bush v. Beckmann, 283 App. Div. 1070.) One who is dismissed or acquiesces in his removal therefrom may not recover the compensation of his position. (Hagan v. City of Brooklyn, 126 N. Y. 643; Matter of Whalen v. Corsi, 201 Misc. 39, 43; Paris v. City of New York, 189 Misc. 445, 446.)
Petitioner’s claim is grounded on subdivision 3 of section 75 of the Civil Service Law. Thereby an officer or employee pending the hearing and determination of the charges preferred may be suspended without pay for a period not exceeding 30 days. The power to suspend pending charges is clear. The suspension subsists although it exceeds the 30-day limitation. (Matter of Wilson v. D’Angelo, 10 A D 2d 706; Matter of Phinn v. Kross, 26 Misc 2d 889, 89A-895, affd. 15 A D 2d 641; Matter of Lindquist v. City of Jamestown, 192 Misc. 906, 911.) If the disciplinary proceeding is delayed unreasonably, the appropriate remedy is a proceeding for restoration. (Matter of Kelly v. Board of Educ., 234 App. Div. 239, affd. 259 N. Y. 518.) Upon restoration
Petitioner’s reliance on Matter of Bentley v. Henninger (10 A D 2d 900) and Matter of Carville v. Board of Educ. of Utica City School Dist. (11A D 2d 1092) is misplaced. The cited cases, unlike the instant proceeding, did not involve employees dismissed for cause. They suggest that an employee not dismissed and otherwise disciplined may be entitled to relief by reason of suspension beyond 30 days pending determination of the disciplinary proceeding. In such case, however, whether or not the employee expressly or impliedly waived the excess period of suspension would be relevant. (Wardlaw v. Mayor of City of New York, 137 N. Y. 194, 200; Matter of Fay v. Lyons, 202 Misc. 789, 791.)
Accordingly, I dissent and vote to reverse and dismiss the petition.
Bbeitel, J. P., Eageb and Steueb, JJ., concur with Stevens, J.; McNally, J., dissents in opinion.
Judgment affirmed, without costs.