75 A.D.2d 853 | N.Y. App. Div. | 1980
Proceeding pursuant to CPLR article 78, inter alia, to review so much of a determination of the respondent Commissioner of Department of Buildings and Grounds of Suffolk County, dated April 7, 1978, as sustained certain charges against the petitioner and dismissed him from service effective July 11, 1977. Petition granted to the extent that the determination is annulled insofar as reviewed, on the law, with costs, Charges Nos. 2 and 3 are dismissed and the matter is remitted to the Suffolk County Department of Buildings and Grounds for a de novo determination by a deputy commissioner, based upon the original hearing records, solely as to the remaining specifications under Charge No. 1. The petitioner is an architectural draftsman for the Department of Buildings and Grounds who was appointed under the Civil Service Law. He was served with charges pursuant to section 75 of the Civil Service Law on May 2, 1977. Charge No. 1 alleged that the petitioner was incompetent in that he failed to conform with accepted standards of work for his position. This charge was supported by five specifications. Charge No. 2 alleged that the petitioner had exhausted all his allowable leave, "resulting in [his] being placed on leave without pay”, which was in violation of the policies and rules of the department. Charge No. 3 alleged that the petitioner was disruptive in the office and that his conduct was detrimental by reason of an implied threat which he made to a co-worker. A hearing on the charges was held, as a result of which the hearing officer recommended that all of the charges should be dismissed. The respondent Commissioner of the Department of Buildings and Grounds rejected the recommendation and found the petitioner guilty of all of the charges, except as to a portion of Charge No. 3, and dismissed the petitioner from service. The petitioner instituted a proceeding pursuant to CPLR article 78 to review the determination. Special Term, citing Matter of Simpson v Wolansky (45 AD2d 876, affd 38 NY2d 391; see later disposition Matter of Simpson v Director of Letchworth Vil., 56 AD2d 631), remanded the matter to the commissioner after finding that his determination was based to some degree on facts dehors the record. Upon the remand, the commissioner, on April 7, 1978, again found the petitioner guilty of all three charges, except as to certain specifications under Charges Nos. 1 and 3, and again imposed the punishment of dismissal. It is this determination to which this proceeding pursuant to CPLR