Seminara v. Niagara County Community College

170 A.D.2d 1012, 565 N.Y.S.2d 671, 1991 N.Y. App. Div. LEXIS 1754

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1991
• Status: Published

Opinion

Judgment unanimously reversed on the law without costs and relief granted, in accordance with the following Memorandum: Petitioner, the Director of the Library at respondent Community College, was reappointed to that position in June of 1989 for a one-year term ending on August 31, 1990. Petitioner was suspended without pay for 10 working days, effective August 18, 1989, and that same day, was served with written charges alleging intentional administrative violations. Petitioner requested a hearing, and on August 26, 1989, was advised that her 10-day suspension would continue indefinitely because an investigation was pending on new allegations. Some six months after the initial suspension, she commenced this proceeding for reinstatement, together with back pay and benefits, upon the ground that she had been denied her right to a timely hearing. Respondent then served petitioner with written charges and a notice that a hearing would be held on May 7, 1990. Supreme Court denied the petition on condition that respondent hold the hearing on May 7, 1990, and the parties agreed to a stay of the order pending this appeal.

The Policies and Procedures of the Board of Trustees of respondent College contemplate that, in the event of the suspension of an administrator without pay, the administrator will be afforded a hearing within a reasonable time, with notice of the hearing date to be served at least 20 days before the hearing. Respondent failed to serve petitioner with notice of a hearing for some seven months, and thus, violated petitioner’s right to a timely hearing. Because petitioner’s term of appointment has expired, the remedy of reinstatement is inappropriate (see, Matter of Alberti v County of Erie, 46 AD2d 725, appeal dismissed 36 NY2d 936, lv denied 38 NY2d 710). Petitioner is, however, entitled to back pay and benefits from August 18, 1989, through August 31, 1990. (Appeal from Judgment of Supreme Court, Niagara County, Mintz, J.—Article 78.) Present—Dillon, P. J., Boomer, Pine, Balio and Lowery, JJ.