Donohue v. New York State Police

Appellate Division of the Supreme Court of New York

Donohue v. New York State Police

30 A.D.2d 910, 292 N.Y.S.2d 622, 1968 N.Y. App. Div. LEXIS 3358

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

DecidedJuly 23, 1968

StatusPublished

This text of 30 A.D.2d 910 (Donohue v. New York State Police) 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

Donohue v. New York State Police, 30 A.D.2d 910, 292 N.Y.S.2d 622, 1968 N.Y. App. Div. LEXIS 3358 (N.Y. Ct. App. 1968).

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Opinions

Per Curiam.

Appeal by petitioner from an order of the Supreme Court at Special Term which denied his application to punish [911]*911respondent for contempt. (Opinions on prior appeals, 25 A D 2d 908, revd. 19 N Y 2d 954.) Although we find no merit in the Attorney-General’s argument that the citation by the Court of Appeals of Matter of Bell v. Waterfront Comm, of N. Y. Harbor (20 N Y 2d 54) either contemplated or authorized petitioner’s suspension for the period of approximately three years consumed in the trial and determination of the disciplinary proceeding, neither do we find that any basis has been demonstrated for an application to punish for contempt. Order affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum Per Curiam-, Herlihy and Reynolds, JJ., each in a separate memorandum. Herlihy, J. (concurring). From the present record it appears that the respondent has not yet imposed any lawful penalty on the petitioner, but merely reinstated him following three years of litigation and accordingly it is unnecessary to decide whether the Superintendent of the State Police is in contempt of court or whether the present motion, part of the original proceeding, could be interpreted as addressed to the foot of the judgment. The Superintendent had no authority to impose any penalty or punishment except as provided in section 75 of the Civil Service Law and his own rules and regulations (see 9 [A] NYCRR 479.13) which, according to subdivision 2 of section 215 of the Executive Law, are subject to approval by the Governor. It certainly was not the intention of this member of the court and I assume that it was not the intention of the Court of Appeals, the remittitur of which clearly stated “ His discharge is annulled ”, to permit the Superintendent, rather than following his own rules and regulations, to subject the petitioner to an unauthorized penalty of three years’ suspension. It appears to me that the time has arrived for the Superintendent to impose a new penalty, if he deems it necessary, in accordance with his own rules and regulations and without further litigation, after which the issue as to what back pay, if any, petitioner is entitled to receive can be determined upon a hearing as provided by law.

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Per Curiam.

Appeal by petitioner from an order of the Supreme Court at Special Term which denied his application to punish [911]*911respondent for contempt. (Opinions on prior appeals, 25 A D 2d 908, revd. 19 N Y 2d 954.) Although we find no merit in the Attorney-General’s argument that the citation by the Court of Appeals of Matter of Bell v. Waterfront Comm, of N. Y. Harbor (20 N Y 2d 54) either contemplated or authorized petitioner’s suspension for the period of approximately three years consumed in the trial and determination of the disciplinary proceeding, neither do we find that any basis has been demonstrated for an application to punish for contempt. Order affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum Per Curiam-, Herlihy and Reynolds, JJ., each in a separate memorandum. Herlihy, J. (concurring). From the present record it appears that the respondent has not yet imposed any lawful penalty on the petitioner, but merely reinstated him following three years of litigation and accordingly it is unnecessary to decide whether the Superintendent of the State Police is in contempt of court or whether the present motion, part of the original proceeding, could be interpreted as addressed to the foot of the judgment. The Superintendent had no authority to impose any penalty or punishment except as provided in section 75 of the Civil Service Law and his own rules and regulations (see 9 [A] NYCRR 479.13) which, according to subdivision 2 of section 215 of the Executive Law, are subject to approval by the Governor. It certainly was not the intention of this member of the court and I assume that it was not the intention of the Court of Appeals, the remittitur of which clearly stated “ His discharge is annulled ”, to permit the Superintendent, rather than following his own rules and regulations, to subject the petitioner to an unauthorized penalty of three years’ suspension. It appears to me that the time has arrived for the Superintendent to impose a new penalty, if he deems it necessary, in accordance with his own rules and regulations and without further litigation, after which the issue as to what back pay, if any, petitioner is entitled to receive can be determined upon a hearing as provided by law.

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30 A.D.2d 910, 292 N.Y.S.2d 622, 1968 N.Y. App. Div. LEXIS 3358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donohue-v-new-york-state-police-nyappdiv-1968.