Badrow v. Common Council

Appellate Division of the Supreme Court of New York

Badrow v. Common Council

26 A.D.2d 611, 271 N.Y.S.2d 57, 1966 N.Y. App. Div. LEXIS 3978

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 17, 1966

StatusPublished

Cited by2 cases

This text of 26 A.D.2d 611 (Badrow v. Common Council) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Badrow v. Common Council, 26 A.D.2d 611, 271 N.Y.S.2d 57, 1966 N.Y. App. Div. LEXIS 3978 (N.Y. Ct. App. 1966).

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Opinion

Order unanimously reversed, without costs of this appeal to any party, determination annulled, and matter remitted to respondents for further proceedings in accordance with the memorandum. Memorandum: On August 1, 1963 petitioners were served with charges specifying that on certain dates each had refused to accept and obey the orders and directions of their supervisors. After a hearing held on September 10, 1963, petitioners were suspended for 10 days without pay. The penalty was stayed pending review in this article 78 proceeding. A motion to dismiss the petition herein on the ground that it was insufficient as a matter of law was denied by Special Term on April 9, 1964; however, upon reargument on May 26, 1964, the court vacated its prior order and dismissed the petition upon the ground that at the time the charges were filed and the determination was made there was no authority to review since the punishment did not exceed 10 days. (Civil Service Law, § 76, subd. 1; Matter of Winn v. Department of Hosps., 20 A D 2d 856.) It appears that, effective April 16, 1964, subdivision 1 of section 76 of the Civil Service Law was amended to authorize a proceeding to review regardless of the penalty imposed. Since we must decide this issue according to existing law (Rottkamp v. Young, 15 N Y 2d 831; Black Biv. Regulating Dist. v. Adirondack League Club, 307 N. Y. 475, 486; Matter of Boardwalk & Seashore Corp. v. Murdock, 286 N. Y. 494) the order dismissing the petition should be reversed. The record does not contain proper findings or a formal written decision to support respondents’ determination; consequently we are unable to pass upon the merits of the application at this time. We have repeatedly stated that determinations subject to judicial review must be based on findings which are sufficient to inform the court and parties as to the findings made, the basis of the findings and whether the findings are supportable by the evidence. (Matter of Di Orio v. Murphy, 20 A D 2d 754; Matter of Pasch v. Gerosa, 18 A D 2d 982; Matter of Jackson v. Rohan, 1 A D 2d 89; Matter of New York Water Serv. Corp. v. Water Power & Control Comm., 283 N. Y. 23.) (Appeal from order of Erie Supreme Court dismissing a petition for review of determination of City of Tonawanda Common Council pursuant to section 75 of Civil Service Law upon reargument of the motion.) Present — Williams, P. J., Bastow, Goldman, Del Vecchio and Marsh, JJ. [43 Misc 2d 64.]

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Order unanimously reversed, without costs of this appeal to any party, determination annulled, and matter remitted to respondents for further proceedings in accordance with the memorandum. Memorandum: On August 1, 1963 petitioners were served with charges specifying that on certain dates each had refused to accept and obey the orders and directions of their supervisors. After a hearing held on September 10, 1963, petitioners were suspended for 10 days without pay. The penalty was stayed pending review in this article 78 proceeding. A motion to dismiss the petition herein on the ground that it was insufficient as a matter of law was denied by Special Term on April 9, 1964; however, upon reargument on May 26, 1964, the court vacated its prior order and dismissed the petition upon the ground that at the time the charges were filed and the determination was made there was no authority to review since the punishment did not exceed 10 days. (Civil Service Law, § 76, subd. 1; Matter of Winn v. Department of Hosps., 20 A D 2d 856.) It appears that, effective April 16, 1964, subdivision 1 of section 76 of the Civil Service Law was amended to authorize a proceeding to review regardless of the penalty imposed. Since we must decide this issue according to existing law (Rottkamp v. Young, 15 N Y 2d 831; Black Biv. Regulating Dist. v. Adirondack League Club, 307 N. Y. 475, 486; Matter of Boardwalk & Seashore Corp. v. Murdock, 286 N. Y. 494) the order dismissing the petition should be reversed. The record does not contain proper findings or a formal written decision to support respondents’ determination; consequently we are unable to pass upon the merits of the application at this time. We have repeatedly stated that determinations subject to judicial review must be based on findings which are sufficient to inform the court and parties as to the findings made, the basis of the findings and whether the findings are supportable by the evidence. (Matter of Di Orio v. Murphy, 20 A D 2d 754; Matter of Pasch v. Gerosa, 18 A D 2d 982; Matter of Jackson v. Rohan, 1 A D 2d 89; Matter of New York Water Serv. Corp. v. Water Power & Control Comm., 283 N. Y. 23.) (Appeal from order of Erie Supreme Court dismissing a petition for review of determination of City of Tonawanda Common Council pursuant to section 75 of Civil Service Law upon reargument of the motion.) Present — Williams, P. J., Bastow, Goldman, Del Vecchio and Marsh, JJ. [43 Misc 2d 64.]

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26 A.D.2d 611, 271 N.Y.S.2d 57, 1966 N.Y. App. Div. LEXIS 3978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/badrow-v-common-council-nyappdiv-1966.

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