Opinion
May 14, 1990
Appeal from the Supreme Court, Westchester County (West J.).
Proceeding pursuant to CPLR article 78 (proceeding No. 2), to review a determination of the Town Board of the Town of Yorktown dated August 2, 1988, which, following a new hearing, terminated the petitioner's employment retroactive to May 6, 1987.
Ordered that on the court's own motion, the notice of appeal and the notice of cross appeal from the order entered December 21, 1987, are treated as applications for leave to appeal and cross-appeal, those applications are referred to Justice Bracken, and leave to appeal and cross-appeal are granted by Justice Bracken (CPLR 5701 [b] [1]); and it is further,
Ordered that the order entered December 21, 1987, is modified, by deleting the provision thereof which denied the petitioner an award of back pay for the period of his suspension prior to May 6, 1987, and by substituting therefor a provision awarding the petitioner back pay for the period of his suspension up until August 2, 1988, less 30 days and less any unemployment benefits he may have received during that period; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a computation of an award of back pay; and it is further,
Adjudged that petition is granted, on the law, to the extent that the provision of the determination dated August 2, 1988, terminating the petitioner's employment retroactive to May 6, 1987, is deleted, the determination is otherwise confirmed, and the proceeding is otherwise dismissed, without costs or disbursements.
We agree with the Supreme Court's conclusion that the first administrative determination adopted by a resolution of the Town Board of the Town of Yorktown on May 5, 1987, was procedurally infirm insofar as the petitioner's employment records, which contained allegations of time-barred and previously uncharged and unproven acts of misconduct (see, Civil Service Law § 75), were improperly considered by the Hearing Officer on the issue of the petitioner's guilt of the instant charges (see, Matter of Bigelow v. Board of Trustees, 63 N.Y.2d 470; Ferguson v. Meehan, 141 A.D.2d 604; Matter of Smith v. Tomlinson, 111 A.D.2d 245). Accordingly, that determination was properly annulled. The order appealed from, however, improperly limited the time period for which the petitioner was entitled to an award of back pay. The petitioner was suspended without pay from his civil service position as of December 15, 1986. Pursuant to Civil Service Law § 75 (3), he was only subject to such a suspension for 30 days. As he was not responsible for causing the intervening delays, the petitioner is entitled to an award of back pay for the period of his suspension in excess of 30 days until the date of his dismissal on August 2, 1988 (see, Sinicropi v. Bennett, 92 A.D.2d 309, affd 60 N.Y.2d 918, cert denied 475 U.S. 1019; Matter of Chopay v. Town of Oyster Bay, 99 A.D.2d 810). Furthermore, the town could not terminate the petitioner's employment on August 2, 1988, retroactive to May 6, 1987, as the earlier determination had been properly annulled owing to the town's failure to follow appropriate hearing procedures (Matter of McLaughlin v. North Bellmore Union Free School Dist., 86 A.D.2d 870).
Furthermore, we find that the Town Board's subsequent determination dated August 2, 1988, terminating the petitioner's employment after a new hearing, was supported by substantial evidence. At the second hearing the petitioner's history of repeated unreported latenesses and absences, some of which he conceded, and about which he was repeatedly warned, was convincingly established. The penalty of dismissal was accordingly appropriate (see, e.g., Matter of Collins v Amrhein, 134 A.D.2d 346; Miller v. Sise, 120 A.D.2d 653; Matter of Power v. Board of Trustees, 96 A.D.2d 728).
We have reviewed the parties' remaining contentions and find them to be without merit. Bracken, J.P., Brown, Lawrence and Kooper, JJ., concur.