Damino v. Shapiro

Appellate Division of the Supreme Court of New York

Damino v. Shapiro

50 A.D.2d 888, 377 N.Y.S.2d 925, 1975 N.Y. App. Div. LEXIS 11787

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

DecidedDecember 29, 1975

StatusPublished

Cited by1 cases

This text of 50 A.D.2d 888 (Damino v. Shapiro) 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

Damino v. Shapiro, 50 A.D.2d 888, 377 N.Y.S.2d 925, 1975 N.Y. App. Div. LEXIS 11787 (N.Y. Ct. App. 1975).

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Opinion

— In a proceeding pursuant to CPLR article 78 to compel appellants to pay the salary of petitioner, a tenured civil servant who was suspended without pay on stated charges, for the period following the expiration of 30 days from the commencement of the initial suspension until the final determination of the administrative charges against him, the appeal is from a judgment of the Supreme Court, Nassau County, dated July 22, 1975, which granted the application. Judgment affirmed, with costs, upon the opinion of the late Mr. Justice Liff at Special Term. Hopkins, Acting P. J., Brennan and Munder, JJ., concur; Martuscello and Cohalan, JJ., dissent and vote to reverse the judgment and dismiss the petition, with the following memorandum: It is uncontroverted that appellants did not afford petitioner a hearing on the charges against him within 30 days from May 12, 1975, the date upon which he was suspended without pay pursuant to section 75 of the Civil Service Law. At the close of the 30-day period appellants ended the suspension and directed petitioner to report for work, but he refused to do so. Petitioner was then indefinitely suspended without pay until such time as he reported for work. In our opinion, petitioner may [889]*889not refuse to perform any services yet nevertheless demand that appellants pay him his salary (see 23 Opns St Comp 67-851, pp 756-758).

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— In a proceeding pursuant to CPLR article 78 to compel appellants to pay the salary of petitioner, a tenured civil servant who was suspended without pay on stated charges, for the period following the expiration of 30 days from the commencement of the initial suspension until the final determination of the administrative charges against him, the appeal is from a judgment of the Supreme Court, Nassau County, dated July 22, 1975, which granted the application. Judgment affirmed, with costs, upon the opinion of the late Mr. Justice Liff at Special Term. Hopkins, Acting P. J., Brennan and Munder, JJ., concur; Martuscello and Cohalan, JJ., dissent and vote to reverse the judgment and dismiss the petition, with the following memorandum: It is uncontroverted that appellants did not afford petitioner a hearing on the charges against him within 30 days from May 12, 1975, the date upon which he was suspended without pay pursuant to section 75 of the Civil Service Law. At the close of the 30-day period appellants ended the suspension and directed petitioner to report for work, but he refused to do so. Petitioner was then indefinitely suspended without pay until such time as he reported for work. In our opinion, petitioner may [889]*889not refuse to perform any services yet nevertheless demand that appellants pay him his salary (see 23 Opns St Comp 67-851, pp 756-758).

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Bluebook (online)

50 A.D.2d 888, 377 N.Y.S.2d 925, 1975 N.Y. App. Div. LEXIS 11787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/damino-v-shapiro-nyappdiv-1975.

Opinion

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