Andreucci v. Kinzler

51 A.D.2d 1015, 381 N.Y.S.2d 116, 92 L.R.R.M. (BNA) 2960, 1976 N.Y. App. Div. LEXIS 11785

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1976
• Status: Published

Opinion

Consolidated proceedings pursuant to CPLR article 78 to review determinations, made after hearings, that petitioners had participated in a strike and directing that deductions be made from their salaries therefor. Determinations confirmed and proceedings dismissed on the merits, without costs or disbursements. The determination of respondents that a strike did in fact take place is supported by substantial evidence on the record taken as a whole. Respondents properly relied on findings of fact made by the Public Employment Relations Board and its hearing officer in connection with the abnormally high absence rate of teachers on the days in question (see Matter of Farmingdale Classroom Teachers Assn., 6 PERB 3036; Matter of Farming-dale Classroom Teachers Assn., 6 PERB 8001), and, in view of all the circumstances, it appears that a strike did indeed take place. The respondent hearing officer properly concluded that none of the petitioners adduced sufficient evidence to refute the statutory presumption against them (see Civil Service Law, § 210, subd 2, par [b]). Petitioners’ reliance on Matter of Zacchi v Savitt (NYU, July 6, 1973, p 13, col 5, affd 46 AD2d 788) is misplaced since the employee therein had "amply refuted” the statutory presumption against him. Absent the submission of such sufficient evidence, there is no burden on the employer to offer evidence to the contrary. Gulotta, P. J., Hopkins, Martuscello, Latham and Shapiro, JJ., concur.