Dunning v. City of Newburgh

Appellate Division of the Supreme Court of New York

Dunning v. City of Newburgh

210 A.D.2d 404, 620 N.Y.S.2d 105, 1994 N.Y. App. Div. LEXIS 12841

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

DecidedDecember 19, 1994

StatusPublished

Cited by2 cases

This text of 210 A.D.2d 404 (Dunning v. City of Newburgh) 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

Dunning v. City of Newburgh, 210 A.D.2d 404, 620 N.Y.S.2d 105, 1994 N.Y. App. Div. LEXIS 12841 (N.Y. Ct. App. 1994).

Pincite

Opinion

—Proceeding pursuant to CPLR article 78 to review, inter alia, a determination of the Acting City Manager of the City of Newburgh, dated February 4, 1992, which adopted, in part, the findings of fact of the Hearing Officer, finding the petitioners guilty of charges of misconduct and insubordination involving consumption of alcoholic beverages while on duty and which further found the petitioners guilty of charges that had been dismissed by a Hearing Officer, and terminated the petitioners’ employment with the City of Newburgh Water Department.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs, and the matter is remitted to the respondents for a determination of the claims of the petitioners George Hess and John Decker for back pay, in accordance herewith.

The record supports the determination of the respondents, that the petitioners were drinking beer while on duty on July 24, 1990, after they had notice that any employee found drinking alcohol on the job was subject to immediate dismissal. Moreover, we find that, under the circumstances of this case, the penalty of dismissal is not shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233).

However, the petitioners Hess and Decker are entitled to recover their wages for the period between September 16, 1991, and October 10, 1991, since the delay was attributable tó their attorneys who were engaged in a hearing and a deposition, respectively, on September 16, 1991 (see, Kearse v Fisher, 67 AD2d 963; Yeampierre v Gutman, 57 AD2d 898, 899). We [405]*405have held that "engagement at trial [of counsel for the accused]” cannot be attributable to the accused (Matter of Yeampierre v Gutman, supra, at 899). Sullivan, J. P., Rosenblatt, Miller and Ritter, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

—Proceeding pursuant to CPLR article 78 to review, inter alia, a determination of the Acting City Manager of the City of Newburgh, dated February 4, 1992, which adopted, in part, the findings of fact of the Hearing Officer, finding the petitioners guilty of charges of misconduct and insubordination involving consumption of alcoholic beverages while on duty and which further found the petitioners guilty of charges that had been dismissed by a Hearing Officer, and terminated the petitioners’ employment with the City of Newburgh Water Department.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs, and the matter is remitted to the respondents for a determination of the claims of the petitioners George Hess and John Decker for back pay, in accordance herewith.

The record supports the determination of the respondents, that the petitioners were drinking beer while on duty on July 24, 1990, after they had notice that any employee found drinking alcohol on the job was subject to immediate dismissal. Moreover, we find that, under the circumstances of this case, the penalty of dismissal is not shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233).

However, the petitioners Hess and Decker are entitled to recover their wages for the period between September 16, 1991, and October 10, 1991, since the delay was attributable tó their attorneys who were engaged in a hearing and a deposition, respectively, on September 16, 1991 (see, Kearse v Fisher, 67 AD2d 963; Yeampierre v Gutman, 57 AD2d 898, 899). We [405]*405have held that "engagement at trial [of counsel for the accused]” cannot be attributable to the accused (Matter of Yeampierre v Gutman, supra, at 899). Sullivan, J. P., Rosenblatt, Miller and Ritter, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

210 A.D.2d 404, 620 N.Y.S.2d 105, 1994 N.Y. App. Div. LEXIS 12841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunning-v-city-of-newburgh-nyappdiv-1994.

Opinion

Related

Cite This Page — Counsel Stack