Opinion
September 16, 1985
Petition granted to the extent that the determination is modified, on the law, by deleting therefrom the penalties imposed. As so modified, determination confirmed and proceeding otherwise dismissed on the merits, without costs or disbursements, and matter remitted to respondent Sheriff for the purpose of imposing an appropriate penalty in accordance herewith.
Based upon a review of the record as a whole, there is substantial evidence to support respondents' determination that petitioner was guilty of misconduct as charged (see, 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176, 179; Matter of Stork Rest. v Boland, 282 N.Y. 256, 267). Accordingly, that determination is confirmed.
With respect to the penalty imposed, in Matter of Brabham v Weinstein ( 89 A.D.2d 566), we expressly held that Civil Service Law § 75 (3) provides a choice of penalties; that is, "'a reprimand, a fine * * * suspension without pay * * * demotion in grade and title, or dismissal from the service'", thus prohibiting the imposition of a dual penalty such as a reprimand, as well as suspension without pay.
On the appeal of this case, the Court of Appeals held (supra, p 781) that respondents' refusal "to remit the 30-day prehearing suspension, may be considered a penalty or punishment within Civil Service Law § 76 (1), of which review may be sought". In view of this determination, and in accordance with Matter of Brabham v Weinstein (supra), we remit this case to the Sheriff for the imposition upon petitioner of a penalty of suspension without pay or a reprimand, but not both. Mangano, J.P., Brown, O'Connor and Niehoff, JJ., concur.