Opinion
September 25, 1995
Appeal from the Supreme Court, Westchester County (Cowhey, J.).
Ordered that the appeal from the judgment is dismissed, as the judgment was superseded by the order entered April 28, 1994, made upon reargument; and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the judgment is vacated, Michael DeMuro's petition is denied, the petition of the Board of Education of the Yonkers City School District is granted, the determination is annulled, and the matter is remitted to the Yonkers Civil Service Commission for further proceedings in accordance herewith.
Civil Service Law § 76 (2) provides that where an appeal is taken to a municipal commission, "such commission shall review the record of the disciplinary proceeding and the transcript of the hearing, and shall determine such appeal on the basis of such record and transcript and such oral or written argument as the commission may determine". In this case, the record reveals that the Yonkers Civil Service Commission (hereinafter the Commission) solicited information and evidence not included in the record of the disciplinary proceeding. Therefore, the Commission acted in excess of its statutory authority (see, Matter of New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn., 78 N.Y.2d 318). Accordingly, this matter is remitted to the Commission to determine the appeal in accordance with the provisions of Civil Service Law § 76.
We have considered Michael DeMuro's remaining contention and find it to be without merit (see, CPLR 217). Sullivan, J.P., Miller, Copertino, Joy and Friedmann, JJ., concur.