Rendell v. Alioto

42 A.D.2d 597, 344 N.Y.S.2d 725, 1973 N.Y. App. Div. LEXIS 4171

Opinion

In a proceeding pursuant to article 78 of the CPLR to review two determinations of appellant Superintendent of Schools, (1) the first, dated April 12, 1972 and made after a hearing, (a) stating that petitioner, a teacher in appellants’ school system, had engaged in a strike and (b) imposing penalties prescribed by section 210 (subd. 2, pars, [f], [g]) of the Civil Service Law, and (2) the second, dated June 21, 1972, transferring petitioner to a "Permanent Substitute Pool” status, the appeal is from a judgment of the Supreme Court, Westchéster County, dated September 13, 1972, which inter alla reinstated petitioner [o her former position, with seniority, tenure and restoration of salary rights and other benefits. Judgment reversed and determinations annulled, on the law, without costs, and matter remitted to appellants for a new hearing and determination. We agree with Special Term that petitioner was deprived of due process in that she was not given a fair hearing. She was not afforded an opportunity to confront and cross-examine witnesses; sworn statements were not taken; stenographic minutes were not taken at the hearing; and findings of fact were not made. However, it is our opinion that under the circumstances of this case the appropriate remedy is a new hearing at which petitioner’s rights will be safeguarded. We reach no other question. Rabin, P. J., Hopkins, Munder, Martuscello and Shapiro, JJ., concur.