Pasaric v. Board of Education

46 A.D.2d 922, 362 N.Y.S.2d 549, 88 L.R.R.M. (BNA) 3279, 1974 N.Y. App. Div. LEXIS 3218

Opinion

Proceeding pursuant to article 78 of the CPLR inter alia to annul a determination dated February 25, 1973 and a supplemental determination dated July 3, 1973, both made by respondent Hearing Officer Max M. Doner, which, after hearings, found that petitioner, an employee of the respondent school district, had participated in a strike. Determinations reversed, on the law, with costs, and respondent Board of Education is directed to refund to petitioner the amount of money deducted from his salary pursuant to section 210 (subd. 2, par. [g]) of the Civil Service Law. The statutory presumption (Civil Service Law, § 210, subd. 2, par. [b]) that petitioner was absent by reason of the strike was overcome by the uncontradicted documentary proof of his illness and the testimony of the doctor whom he produced at the supplemental hearing. Martuscello, Acting P. J., Shapiro and Munder, JJ., concur; Latham and Benjamin, JJ., dissent and vote to dismiss the proceeding, and confirm the determinations on the ground that there was a rational basis for the determinations (Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY 2d 222).