Rudy v. Board of Education

Appellate Division of the Supreme Court of New York

Rudy v. Board of Education

128 A.D.2d 881, 513 N.Y.S.2d 804, 1987 N.Y. App. Div. LEXIS 44556

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

DecidedMarch 30, 1987

StatusPublished

Cited by1 cases

This text of 128 A.D.2d 881 (Rudy v. Board of Education) 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

Rudy v. Board of Education, 128 A.D.2d 881, 513 N.Y.S.2d 804, 1987 N.Y. App. Div. LEXIS 44556 (N.Y. Ct. App. 1987).

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Opinion

Proceeding pursuant to CPLR article 78 to review a determination of respondent Board of Education of the Wantagh Union Free School District, dated May 16, 1985, which, after a hearing, dismissed petitioner from his position as a custodian.

Adjudged that the petition is granted, the determination is annulled, on the law, without costs or disbursements, the charges are dismissed, the petitioner is restored to his position with full pay for the period from his suspension to the date of his restoration, less the amount of any unemployment insurance benefits he may have received during that period, without prejudice to the Board of Education of the Wantagh Union Free School District bringing more specific charges against the petitioner, if it be so advised.

The accusation which charged the petitioner only with "incompetence and misconduct” was patently insufficient to inform him of the nature of the charges against him and thus violated his right to due process (see, Matter of Fitzgerald v Libous, 44 NY2d 660). Furthermore, the petitioner was not given at least eight days in which to answer the charges (see, Civil Service Law § 75 [2]). Since there may be a rehearing, we also note that the respondent Board may not consider in its finding matters dehors the record (see, Matter of Simpson v Wolansky, 38 NY2d 391). Mangano, J. P., Rubin, Hooper and Harwood, JJ., concur.

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Proceeding pursuant to CPLR article 78 to review a determination of respondent Board of Education of the Wantagh Union Free School District, dated May 16, 1985, which, after a hearing, dismissed petitioner from his position as a custodian.

Adjudged that the petition is granted, the determination is annulled, on the law, without costs or disbursements, the charges are dismissed, the petitioner is restored to his position with full pay for the period from his suspension to the date of his restoration, less the amount of any unemployment insurance benefits he may have received during that period, without prejudice to the Board of Education of the Wantagh Union Free School District bringing more specific charges against the petitioner, if it be so advised.

The accusation which charged the petitioner only with "incompetence and misconduct” was patently insufficient to inform him of the nature of the charges against him and thus violated his right to due process (see, Matter of Fitzgerald v Libous, 44 NY2d 660). Furthermore, the petitioner was not given at least eight days in which to answer the charges (see, Civil Service Law § 75 [2]). Since there may be a rehearing, we also note that the respondent Board may not consider in its finding matters dehors the record (see, Matter of Simpson v Wolansky, 38 NY2d 391). Mangano, J. P., Rubin, Hooper and Harwood, JJ., concur.

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Bluebook (online)

128 A.D.2d 881, 513 N.Y.S.2d 804, 1987 N.Y. App. Div. LEXIS 44556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rudy-v-board-of-education-nyappdiv-1987.

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