Cepeda v. Koehler

Appellate Division of the Supreme Court of New York

Cepeda v. Koehler

159 A.D.2d 290

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

DecidedMarch 13, 1990

StatusPublished

This text of 159 A.D.2d 290 (Cepeda v. Koehler) 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.

Bluebook

Cepeda v. Koehler, 159 A.D.2d 290 (N.Y. Ct. App. 1990).

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Opinion

Petition pursuant to CPLR article 78, transferred to this court by order of the Supreme Court, New York County (Bruce McM. Wright, J.), entered on or about January 18, 1989, to annul a determination of respondent New York City Department of Correction, dated on or about September 24, 1987, which penalized petitioner by requiring forfeiture of 15 vacation days plus payment of $1,500 fine, is unanimously granted to the extent of annulling the penalty and remanding the matter to respondents for reconsideration of the penalty imposed, without costs or disbursements.

[291]*291In reviewing the record, we find that there was substantial evidence to support the Administrative Law Judge’s determination that petitioner, on or about July 23,1986, while on sick leave, left his place of residence without having properly notified his institution (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). However, since there appears to be a question regarding the parties’ consent to the otherwise illegal penalty, consisting of the forfeiture of 15 vacation days plus a $1,500 fine (see, CPLR 7803 [3]), annulment of the penalty is warranted. It is preferable that respondent impose the appropriate penalty rather than having this court substitute the Hearing Officer’s original recommendation of a 30-day suspension without pay (see, Matter of Ahsaf v Nyquist, 37 NY2d 182). Concur—Sullivan, J. P., Milonas, Rosenberger and Smith, JJ.

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Petition pursuant to CPLR article 78, transferred to this court by order of the Supreme Court, New York County (Bruce McM. Wright, J.), entered on or about January 18, 1989, to annul a determination of respondent New York City Department of Correction, dated on or about September 24, 1987, which penalized petitioner by requiring forfeiture of 15 vacation days plus payment of $1,500 fine, is unanimously granted to the extent of annulling the penalty and remanding the matter to respondents for reconsideration of the penalty imposed, without costs or disbursements.

[291]*291In reviewing the record, we find that there was substantial evidence to support the Administrative Law Judge’s determination that petitioner, on or about July 23,1986, while on sick leave, left his place of residence without having properly notified his institution (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). However, since there appears to be a question regarding the parties’ consent to the otherwise illegal penalty, consisting of the forfeiture of 15 vacation days plus a $1,500 fine (see, CPLR 7803 [3]), annulment of the penalty is warranted. It is preferable that respondent impose the appropriate penalty rather than having this court substitute the Hearing Officer’s original recommendation of a 30-day suspension without pay (see, Matter of Ahsaf v Nyquist, 37 NY2d 182). Concur—Sullivan, J. P., Milonas, Rosenberger and Smith, JJ.

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159 A.D.2d 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cepeda-v-koehler-nyappdiv-1990.

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