Kearse v. Fisher

Appellate Division of the Supreme Court of New York

Kearse v. Fisher

67 A.D.2d 963, 413 N.Y.S.2d 466, 1979 N.Y. App. Div. LEXIS 10749

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

DecidedFebruary 20, 1979

StatusPublished

Cited by5 cases

This text of 67 A.D.2d 963 (Kearse v. Fisher) 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

Kearse v. Fisher, 67 A.D.2d 963, 413 N.Y.S.2d 466, 1979 N.Y. App. Div. LEXIS 10749 (N.Y. Ct. App. 1979).

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Opinion

— Proceeding pursuant to CPLR article 78 to review a determination of the New York City Transit Authority, dated June 16, 1977, which, after a hearing, dismissed the petitioner from his position as a railroad clerk. Petition granted to the extent that the determination is modified, on the law, by adding thereto a provision that the respondent is to hold a hearing on the issue of back pay, if any, due petitioner. As so modified, determination confirmed, without costs or disbursements and petition is otherwise dismissed on the merits. The petitioner was suspended from his position as a railroad clerk on August 18, 1976 and was dismissed on June 16, 1977. Even though the petitioner was dismissed from service, he is entitled, under subdivision 3 of section 75 of the Civil Service Law, to back pay for the period in excess of the initial 30 days after his suspension, less such sums as may have been earned from other employments during the subject period. However, the petitioner may only recover wages to the extent that any delay beyond the 30-day period is not attributable to him (see Matter of Yeampierre v Gutman, 52 AD2d 608). Therefore, a hearing to determine the amount of back pay, if any, owed the petitioner is required. Titone, J. P., Suozzi, O’Connor and Lazer, JJ., concur.

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— Proceeding pursuant to CPLR article 78 to review a determination of the New York City Transit Authority, dated June 16, 1977, which, after a hearing, dismissed the petitioner from his position as a railroad clerk. Petition granted to the extent that the determination is modified, on the law, by adding thereto a provision that the respondent is to hold a hearing on the issue of back pay, if any, due petitioner. As so modified, determination confirmed, without costs or disbursements and petition is otherwise dismissed on the merits. The petitioner was suspended from his position as a railroad clerk on August 18, 1976 and was dismissed on June 16, 1977. Even though the petitioner was dismissed from service, he is entitled, under subdivision 3 of section 75 of the Civil Service Law, to back pay for the period in excess of the initial 30 days after his suspension, less such sums as may have been earned from other employments during the subject period. However, the petitioner may only recover wages to the extent that any delay beyond the 30-day period is not attributable to him (see Matter of Yeampierre v Gutman, 52 AD2d 608). Therefore, a hearing to determine the amount of back pay, if any, owed the petitioner is required. Titone, J. P., Suozzi, O’Connor and Lazer, JJ., concur.

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Bluebook (online)

67 A.D.2d 963, 413 N.Y.S.2d 466, 1979 N.Y. App. Div. LEXIS 10749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kearse-v-fisher-nyappdiv-1979.

Opinion

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