Garrett v. North Babylon Volunteer Fire Co.

Appellate Division of the Supreme Court of New York

Garrett v. North Babylon Volunteer Fire Co.

78 A.D.2d 897, 433 N.Y.S.2d 218, 1980 N.Y. App. Div. LEXIS 13643

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

DecidedNovember 24, 1980

StatusPublished

Cited by4 cases

This text of 78 A.D.2d 897 (Garrett v. North Babylon Volunteer Fire Co.) 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

Garrett v. North Babylon Volunteer Fire Co., 78 A.D.2d 897, 433 N.Y.S.2d 218, 1980 N.Y. App. Div. LEXIS 13643 (N.Y. Ct. App. 1980).

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Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent which, after a hearing, found petitioner guilty of violating article 3 (§ 2, par g) of respondent’s by-laws, suspended him for a period of 30 days and reduced his rank from first lieutenant to fireman. Petition granted to the extent that the determination is annulled, on the law, without costs or disbursements, and the matter is remitted to respondent for a new hearing in accordance herewith. “The hearing held by an administrative tribunal acting in a judicial or quasi-judicial capacity may be more or less informal. Technical legal rules of evidence and procedure may be disregarded. Nevertheless, no essential element of a fair trial can be dispensed with unless waived. That means, among other things, that the party whose rights are being determined must be fully apprised of the claims of the opposing party and of the evidence to be considered, and must be given the opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal” (Matter of Hecht v Monaghan, 307 NY 461, 470; see, also, General Municipal Law, § 209-1). In the instant case, the respondent failed to advise petitioner of his right to appear at the hearing with counsel (cf. Matter of Rapacki v Board of Fire Comrs. of Uniondale Fire Dist., 75 AD2d 817), despite the fact that the respondent had counsel present to advise it throughout the hearing. In addition, the respondent failed to accord petitioner the opportunity to cross-examine the complainant and refused to permit him to remain in the hearing room during the testimony of the four firemen charged along with him (see Matter of Hecht v Monaghan, supra). Under these circumstances, the hearing cannot be considered fair in any meaningful sense of that word, or to have been in accord with petitioner’s fundamental due process rights. Hopkins, J. P., Mangano, O’Connor and Weinstein, JJ., concur.

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Proceeding pursuant to CPLR article 78 to review a determination of the respondent which, after a hearing, found petitioner guilty of violating article 3 (§ 2, par g) of respondent’s by-laws, suspended him for a period of 30 days and reduced his rank from first lieutenant to fireman. Petition granted to the extent that the determination is annulled, on the law, without costs or disbursements, and the matter is remitted to respondent for a new hearing in accordance herewith. “The hearing held by an administrative tribunal acting in a judicial or quasi-judicial capacity may be more or less informal. Technical legal rules of evidence and procedure may be disregarded. Nevertheless, no essential element of a fair trial can be dispensed with unless waived. That means, among other things, that the party whose rights are being determined must be fully apprised of the claims of the opposing party and of the evidence to be considered, and must be given the opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal” (Matter of Hecht v Monaghan, 307 NY 461, 470; see, also, General Municipal Law, § 209-1). In the instant case, the respondent failed to advise petitioner of his right to appear at the hearing with counsel (cf. Matter of Rapacki v Board of Fire Comrs. of Uniondale Fire Dist., 75 AD2d 817), despite the fact that the respondent had counsel present to advise it throughout the hearing. In addition, the respondent failed to accord petitioner the opportunity to cross-examine the complainant and refused to permit him to remain in the hearing room during the testimony of the four firemen charged along with him (see Matter of Hecht v Monaghan, supra). Under these circumstances, the hearing cannot be considered fair in any meaningful sense of that word, or to have been in accord with petitioner’s fundamental due process rights. Hopkins, J. P., Mangano, O’Connor and Weinstein, JJ., concur.

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Bluebook (online)

78 A.D.2d 897, 433 N.Y.S.2d 218, 1980 N.Y. App. Div. LEXIS 13643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrett-v-north-babylon-volunteer-fire-co-nyappdiv-1980.

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