Yeampierre v. Gutman

52 A.D.2d 608, 382 N.Y.S.2d 104, 1976 N.Y. App. Div. LEXIS 12230

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 12, 1976
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to compel petitioner’s reinstatement to his position with the New York City Transit Authority, with back pay from December 2, 1974, the date of his suspension, the appeal is from a judgment of the Supreme Court, Kings County, dated April 10, 1975, which (1) directed that petitioner be paid his regular salary as of January 2, 1975 and (2) ordered that salary payments continue until the pending disciplinary proceeding is concluded or until petitioner is reinstated. Judgment modified by adding thereto a provision that the payments to petitioner are to be reduced by the amount of compensation which he may have earned in other employment or occupation during the period of his suspension. As so modified, judgment affirmed, without costs or disbursements, and proceeding remanded to Special Term for further proceedings in accordance herewith. On November 4, 1974 petitioner was arrested and charged with the crime of criminal sale of a controlled substance in the first degree. He was subsequently suspended, without pay, effective December 2, 1974; a departmental hearing was scheduled for December 13, 1974. That hearing was subsequently adjourned (at petitioner’s request) to December 18, 1974 and was thereafter adjourned unilaterally by the authority, upon the request of the District Attorney of Bronx County that the departmental trial await the conclusion of the criminal proceeding. We note that both the disciplinary proceeding and the criminal charges are still pending and that petitioner has not received his salary since the date of his suspension. Subdivision 3 of section 75 of the Civil Service Law provides that, pending the determination of charges against a civil service employee, he may not be suspended without pay for a period in excess of 30 days and that, upon being found guilty of the charges against him, the only permissible punishments are: (1) a reprimand, (2) a fine not to' exceed $100, (3) suspension without pay for a period not to exceed two months, (4) demotion in grade and title or (5) dismissal from the service. Accordingly, it is clear that even if found guilty and ultimately dismissed, an employee is entitled to receive his full salary during any period of suspension in excess of the initial 30 days (see Matter of Lytle v Christian, 47 AD2d 824; Matter of Gould v Looney, 34 AD2d 807; Matter of Amkraut v Hults, 21 AD2d 260, affd 15 NY2d 627). However, where the "delay in proceeding is occasioned by the conduct of the accused”, he will be denied the right to recover wages for the period involved (see Matter of Amkraut v Hults, 21 AD2d 260, 263, supra; accord Matter of Brockman v Dordelman, 48 AD2d 670; Matter of Bentley v Henninger, 10 AD2d 900). Nevertheless, despite appellants’ conclusory statements to the contrary, there is no indication that petitioner is responsible for the delay in these proceedings. Indeed, it fully appears that petitioner was ready to proceed with the hearing but that appellants, on their own initiative, chose to delay the proceedings. Accordingly, petitioner is entitled to the accumulated salary for the period involved, less such sums as may have been earned from other employments during the subject period (see Matter of Lytle v Christian, supra; Matter of Maurer v Cappelli, 42 AD2d 758; Matter of Sabatini v Kirwan, 42 AD2d 1004). Hopkins, Acting P. J., Cohalan, Christ, Shapiro and Titone, JJ., concur.