Carlstrom v. Hauser

54 A.D.2d 705, 387 N.Y.S.2d 447, 1976 N.Y. App. Div. LEXIS 14283

Opinion

—Proceeding pursuant to CPLR article 78, by a firefighter employed by the City of Newburgh, to review a determination of respondent, the City Manager of the City of Newburgh, dated July 11, 1974, which, after a hearing, found petitioner guilty of two charges of improper use of sick leave, each charge covering a three-day period, and suspended him for a period of 180 working days, with those working days which accrued during the suspension period immediately prior to the hearing to be credited against the time of the suspension. Determination modified, on the law, by reducing the suspension to a period of two months, which period shall not include the 30-day period of suspension which was prior to the hearing. As so modified, determination confirmed and proceeding otherwise dismissed on the merits, without costs or disbursements. No fact findings were presented for review. The determination is supported by substantial evidence on the record as a whole. However, the penalty imposed by respondent was in violation of subdivision 3 of section 75 of the Civil Service Law, which provides that if an officer or employee governed by that section is found guilty of the charges brought, the penalty may consist of a "suspension without pay for a period not exceeding two months”. Accordingly, we have reduced petitioner’s suspension to a period of two months. Hopkins, Acting P. J., Margett, Damiani, Shapiro and Titone, JJ., concur.