Opinion
November 24, 1980
Proceeding pursuant to CPLR article 78 to review a determination of the respondent which, after a hearing, found petitioner guilty of violating article 3 (§ 2, par g) of respondent's by-laws, suspended him for a period of 30 days and reduced his rank from first lieutenant to fireman. Petition granted to the extent that the determination is annulled, on the law, without costs or disbursements, and the matter is remitted to respondent for a new hearing in accordance herewith. "The hearing held by an administrative tribunal acting in a judicial or quasi-judicial capacity may be more or less informal. Technical legal rules of evidence and procedure may be disregarded. Nevertheless, no essential element of a fair trial can be dispensed with unless waived. That means, among other things, that the party whose rights are being determined must be fully apprised of the claims of the opposing party and of the evidence to be considered, and must be given the opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal" (Matter of Hecht v Monaghan, 307 N.Y. 461, 470; see, also, General Municipal Law, § 209-1). In the instant case, the respondent failed to advise petitioner of his right to appear at the hearing with counsel (cf. Matter of Rapacki v. Board of Fire Comrs. of Uniondale Fire Dist., 75 A.D.2d 817), despite the fact that the respondent had counsel present to advise it throughout the hearing. In addition, the respondent failed to accord petitioner the opportunity to cross-examine the complainant and refused to permit him to remain in the hearing room during the testimony of the four firemen charged along with him (see Matter of Hecht v. Monaghan, supra). Under these circumstances, the hearing cannot be considered fair in any meaningful sense of that word, or to have been in accord with petitioner's fundamental due process rights. Hopkins, J.P., Mangano, O'Connor and Weinstein, JJ., concur.