Sinnott v. Finnerty

65 N.Y. 780

• Court: New York Court of Appeals
• Decided: June 13, 1985
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, the petition reinstated, and the matter remitted to the Appellate Division for consideration of the proceeding on the merits.

In connection with departmental charges filed against him, appellant was suspended for 30 days without pay, pursuant to section 75 (3) of the Civil Service Law. After a hearing, appellant was found guilty by respondents, whose letter of determination provided for a reprimand and censure, and refused to remit the prehearing suspension. The Appellate Division dismissed appellant’s article 78 petition, concluding that no appeal lies under Civil Service Law § 76 (1) from a reprimand or the refusal to remit a payless prehearing suspension. Appellant does not challenge the dismissal with respect to the reprimand (see, Matter of Winn v Department of Hosps., 20 AD2d 856).

Civil Service Law § 75 (3), permitting a 30-day prehearing suspension without pay, also provides that upon a finding of guilt a posthearing penalty or punishment may include a suspension without pay, and the time during which an officer or employee has previously been suspended without pay may be considered as part of the penalty. Here, respondents’ refusal, in their letter of determination, to remit the 30-day prehearing suspension, may be considered a penalty or punishment within Civil Service Law § 76 (1), of which review may be sought.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment reversed, etc.