1 Misc. 2d 125 | N.Y. Sup. Ct. | 1955
This is a proceeding under article 78 of the Civil Practice Act in which the petitioner seeks to be reinstated to his civil service position as a criminal hospital attendant at Dannemora State Hospital.
For nearly twenty years, the petitioner, a resident of the City of Plattsburgh, held the position of criminal hospital attendant at Dannemora State Hospital in the competitive class of the State civil service until October 16, 1952, when he was committed to the St. Lawrence State Hospital for observation and treatment. On December 9, 1952, the respondents declared the position vacant by reason of section 30 of the Public Officers Law and the petitioner was so informed within a few days, while he was still confined in said hospital. The director of the St. Lawrence State Hospital executed a certificate on December 11, 1952, stating that he found the petitioner mentally ill and in need of continued care and treatment. This certificate was filed in the office of the Clinton County Clerk on December 15, 1952, and a little more than two weeks later, on December 31, 1952, the petitioner was discharged from said hospital as recovered from the mental illness that had brought about his commitment. Shortly after his discharge he attempted to return to his employment at Dannemora State Hospital but was not permitted to do so. At no time were any charges made against him nor was an opportunity given him to be heard. He then started on a series of efforts with various officials to obtain reinstatement and finally when all these failed, he retained his present attorneys on April 5, 1954. The next day he made a formal demand for reinstatement. This was refused on April 20, 1954, and this proceeding was commenced on July 9,1954.
I am of the opinion that the Commissioner of Correction was in error in declaring the position held by the petitioner vacant because of the latter’s committal to the St. Lawrence State Hospital as it is my belief that the petitioner was not a public official within the meaning of section 30 of the Public Officers Law,
Here we have an attendant in a hospital for the criminally insane. His duties relate to the physical care of the patients and are of a custodial or housekeeping nature. He oversees their bathing, dressing and feeding and performs tasks for patients who are unable to care for themselves. No technical knowledge is required of the attendant. He is not a peace officer; he is not armed; he exercises little or no independent judgment; he does not expend public funds, keep public records or perform any of the conventional duties of public office.
It is therefore difficult to hold that the petitioner was a public official. He was, however, holding a position in the competitive class of the civil service of the State, appointed after competitive examination and as such an employee was entitled to written notice upon specified charges and given an opportunity to answer and be heard in accordance with the provisions of section 22 of the Civil Service Law. The petitioner was never given any written notice of specific charges nor given the opportunity to be heard.
The respondents urge that this proceeding is barred by the limitations of time under section 1286 of the Civil Practice Act in that the petition and accompanying papers were not served within four months after the action sought to be reviewed became final and binding upon the petitioner. Said section which has been given its literal meaning in the course of judicial construction, directs that a proceeding ‘ ‘ to compel performance of a duty specifically enjoined by law ” must be instituted within
This proceeding was initiated on July 9, 1954, by the service of a notice and verified petition upon the respondents following a formal written demand made by the petitioner upon the respondents on April 6, 1954, that he be reinstated to his position as criminal hospital attendant at Dannemora State Hospital. ' The demand was refused by the respondents on April 20, 1954. Therefore, there can not be any question but that the proceeding was commenced within four months after demand and refusal.
The question to be determined in this case is whether the petitioner delayed his demand for such an unreasonable length of time that he was guilty of laches and relief should be denied. I do not believe that the petitioner was guilty of laches. His position had been "declared vacant illegally under section 30 of the Public Officers Law and the only notice which he received from the respondents was a letter sent to him while he was at the St. Lawrence State Hospital as a mentally sick person. Ho charges were ever filed against him as required pursuant to section 22 of the Civil Service Law and he was never given an
If the petitioner is irresponsible or emotionally unstable, as the respondents contend, they can file written charges against him pursuant to section 22 of the Civil Service Law.
In conclusion I, therefore, hold and decide that the order of the respondents declaring the petitioner’s position vacant should be annulled; that the petitioner should be reinstated to his civil service position with all privileges and seniority rights and payment of his compensation less the amount of wages he has received from any other employment or occupation as provided by section 23 of the Civil Service Law.
An order may be submitted accordingly.