Opinion
July 10, 1967
Proceeding pursuant to CPLR, article 78, to review a determination of respondent, finding petitioner guilty of all charges preferred against him, and dismissing him from his position as buyer in the Bureau of Purchase and Supplies of the County of Westchester. The proceeding has been transferred to this court for disposition. Determination modified on the law and the facts so as to provide that petitioner is guilty of all charges with the exception of the charge preferred in Specification No. 6 of Charge No. 1, and by vacating the determination that petitioner be dismissed from his position, without costs, and proceeding remitted to respondent for reconsideration of the measure of penalty to be imposed, and for imposition of a lesser penalty. In our opinion, it was error to deny petitioner's motion to strike out the testimony of the Purchasing Agent, with respect to the 6th Specification of Charge No. 1, thus depriving him of his right to adequate cross-examination with respect thereto. As to the balance of the testimony of the Purchasing Agent, petitioner was afforded the right to cross-examine to a reasonable extent (cf. Matter of Friedel v. Board of Regents, 296 N.Y. 347, 352, 353), and there was no abuse of discretion in denying the motion to strike out the testimony with respect thereto. The determination of the respondent as to the balance of the charges is supported by substantial evidence. It is our opinion, however, that under all the circumstances presented by this record, the drastic penalty of dismissal constitutes excessive punishment. Beldock, P.J., Ughetta, Rabin and Benjamin, JJ., concur; Nolan, J., not voting.