Kelly v. Levin

81 A.D.2d 1005, 440 N.Y.S.2d 424, 1981 N.Y. App. Div. LEXIS 11756

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1981
• Status: Published

Opinion

— Judgment unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term properly annulled the determination of the hearing panel finding petitioner not guilty of Charge No. 1 which alleged that petitioner, while serving as school business administrator and purchasing agent of the City School District of the City of Oswego, New York, “did commit two separate larcenies of funds of the said school district and such conduct constitutes bad behavior and inefficient and incompetent service” and found petitioner guilty of said charge. Prior to the institution of charges against him, petitioner had been convicted' of two counts of grand larceny in the third degree (Penal Law, § 155.30) for theft of school property (see People v Kelly, 72 AD2d 670, affirming petitioner’s conviction). Under the circumstances, the fact that petitioner had committed two larcenies of school property was conclusively established under the doctrine of collateral estoppel (see S.T. Grand, Inc. v City of New York, 32 NY2d 300). Inasmuch as the decision of the hearing panel as to the appropriate discipline was based on a finding of guilt of only Charge No. 2 (alleging that petitioner brought discredit upon the school district), Special Term should have remitted the matter for reconsideration by the panel after its reversal of the not guilty finding on Charge No. 1 (see Rob Tess Rest. Corp. v New York State Liq. Auth., 49 NY2d 874; Matter of Harris v Mechanicville Cent. School Dist., 45 NY2d 279). We note that Special Term by letter after its decision suggested that remittal to the panel would be appropriate. Accordingly, the judgment is modified by deleting the third, fourth and fifth decretal paragraphs and inserting in the place thereof a paragraph as follows: “ordered and adjudged, that the matter be and it hereby is remitted to respondents for a determination of an appropriate discipline pursuant to Education Law § 3020-a in the light of the determination herein that petitioner is guilty of Charge #1.” (Appeal from judgment of Oswego Supreme Court — art 78.) Present — Dillon, P. J., Hancock, Jr., Doerr, Moule and Schnepp, JJ.