Brabham v. Weinstein

89 A.D.2d 566, 452 N.Y.S.2d 103, 1982 N.Y. App. Div. LEXIS 17620

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1982
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of respondents, dated January 19, 1981 and made after a hearing finding petitioner guilty of certain specifications of misconduct and imposing a penalty of 60 days’ suspension without pay and a demotion from senior psychiatric aide to “junior nursing aide”. Petition granted to the extent that the determination is modified, on the law, by deleting therefrom the penalties imposed. As so modified, determination confirmed and proceeding otherwise dismissed on the merits, with costs to petitioner, and matter remitted to respondent commissioner of the department of hospitals for the purpose of imposing an appropriate penalty. Pursuant to subdivision 3 of section 75 of the Civil Service Law, the penalty that may be imposed upon an employee who has been found guilty of misconduct is “a reprimand, a fine * * * suspension without pay * * * demotion in grade and title, or dismissal from the service” (emphasis added). In construing subdivision 4 of section 3020-a of the Education Law, which sets forth a similar list of authorized penalties stated in the disjunctive, this court held that “[t]he use of the disjunctive ‘or’ in the statute indicates an alternative manner of proceeding — a choice of penalties” (Matter of Adrian v Board of Educ., 60 AD2d 840). Accordingly, upon remand, the commissioner should impose upon petitioner a penalty of suspension without pay or a demotion in grade and title, but not both. Mollen, P. J., Titone, Weinstein and Rubin, JJ., concur.