Connelly-Logal v. West

272 A.D.2d 920, 708 N.Y.S.2d 225, 2000 N.Y. App. Div. LEXIS 5180

Opinion

—Judgment unanimously reversed on the law without costs and new trial granted. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking review of the determination terminating her employment as an audit inspector for the Buffalo Municipal Housing Authority after its Board of Commissioners abolished that position. Sharon M. West, as Executive Director of the Buffalo Municipal Housing Authority, Cheryl J. MacMillan, as Director of Administration and Finance of the Buffalo Municipal Housing Authority, and the Board of Commissioners of the Buffalo Municipal Housing Authority (respondents) appeal from a judgment entered after a nonjury trial (see, CPLR 7804 [h]) that was commenced before one Supreme Court Justice and concluded before another Justice. Respondents contend that the second Justice violated Judiciary Law § 21 by continuing the trial and determining issues involving the credibility of witnesses, whose testimony only the first Justice heard. We agree. Although respondents failed to object, “[t]he right to have a decision made by the Trial Judge who presided over the entire matter is so basic and fundamental that it is not waived by the failure of counsel to object at the time of the [trial]” (Michel v Michel, 31 AD2d 313, 316). (Appeal from Judgment of Supreme Court, Erie County, Fahey, J. — CPLR art 78.) Present — Green, J. P., Wisner, Hurl-butt and Balio, JJ.