Opinion
November 15, 1985
Appeal from the Supreme Court, Oswego County, Sullivan, J.
Present — Hancock, Jr., J.P., Callahan, Doerr, Pine and Schnepp, JJ.
Determination unanimously modified, on the law, and, as modified, confirmed, without costs, and matter remitted to respondent Hogan for imposition of an appropriate penalty, all in accordance with the following memorandum: We find the evidence in the record insufficient to establish charge 2 against petitioner, that he caused irreparable damage to a city vehicle by overloading it, and to establish the second part of specification 2 of charge 3, that petitioner was not truthful in saying that for the past five or six years he had purchased sand and gravel and given half to the sewage treatment plant. In all other respects, the findings are affirmed. The penalty of dismissal under the circumstances, and in light of our dismissal of charge 2, is shocking to our sense of fairness. We remit the matter to respondent Hogan to fix a penalty which may be as light as a reprimand but may not exceed two months' suspension without pay (Civil Service Law § 75; see, Rob Tess Rest. Corp. v New York State Liq. Auth., 49 N.Y.2d 874; Matter of Harris v Mechanicville Cent. School Dist., 45 N.Y.2d 279; Stevenson v Spencerport Cent. School Dist., 97 A.D.2d 969, lv. dismissed 62 N.Y.2d 644). Petitioner is entitled to back pay from December 21, 1982 to the date of his reinstatement, minus any period of suspension imposed on remittitur and minus any earnings petitioner otherwise received (see, Sinicropi v Bennett, 92 A.D.2d 309, affd 60 N.Y.2d 918).