DeMarco v. City of Albany

• Decision Date: 10 April 1980
• Citation: 75 A.D.2d 674,426 N.Y.S.2d 860
• Parties: In the Matter of Newton DeMARCO, Appellant, v. CITY OF ALBANY et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 860

426 N.Y.S.2d 860

75 A.D.2d 674

In the Matter of Newton DeMARCO, Appellant, v. CITY OF ALBANY et al., Respondents.

Supreme Court, Appellate Division, Third Department.

April 10, 1980.

Rowley & Forrest, Albany, Brian J. O'Donnell, Albany, of counsel, for appellant.

John E. Roe, Corp. Counsel, Albany, John M. Devine, Albany, of counsel, for respondents.

Before GREENBLOTT, J. P., and SWEENEY, KANE, STALEY and CASEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court at Special Term, entered December 29, 1978 in Albany County, which granted in part and denied in part petitioner's application, in a proceeding pursuant to CPLR article 78, to compel respondent to pay petitioner wages alleged to have accrued during a suspension of petitioner's employment.

Petitioner, an Albany Police Department detective, was indicted for bribe receiving in the second degree. On December 1, 1977, he was suspended without pay pending disciplinary charges in connection with that incident. Such charges were preferred on December 6, 1977, and a hearing thereon was scheduled before the Commissioner of Public Safety on December 23, 1977. However, by order of the Supreme Court, dated December 22, 1977, all proceedings related to the disciplinary matter were stayed pending final disposition of the criminal charge. On January 30, 1978, at petitioner's request, the stay was vacated and on February 9, 1978, he was returned to the payroll. The parties stipulated that the disciplinary hearing would be adjourned pending the outcome of the criminal prosecution. The indictment was later dismissed and a dismissal of the disciplinary charges followed on June 26, 1978. The City of Albany refused to pay petitioner for any portion of his 71-day suspension between December 1, 1977 and February 9, 1978. Special Term determined that petitioner should receive payment for that period, except for the time that the stay was in effect from December 22, 1977 to January 30, 1978. It reasoned that the extension of the ordinary suspension period was a result of petitioner's affirmative act in obtaining the stay and, thus, that he was estopped from complaining of a failure to receive pay during that period.

On this appeal, petitioner contends (1) that since he was exonerated of all charges, he should have been fully restored to his position with complete back pay, and (2) in any event, that he was effectively coerced into seeking a delay of the disciplinary hearing in order to protect his Fifth Amendment rights before the administrative body while the criminal charges arising out of the same conduct were still pending. Both arguments must be rejected.

Subdivision 3 of section 75 of the Civil Service Law provides, in pertinent part:

(P)ending the hearing and determination of charges of incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days * * *. If he is acquitted, he shall be restored to his position with full pay for the period of suspension * * *.

The obvious intent of the statute is to compel an expeditious disposition of charges against civil servants (Matter of Amkraut v. Hults, 21 A.D.2d 260, 250 N.Y.S.2d 171, affd. 15 N.Y.2d 627, 255 N.Y.S.2d 672, 203 N.E.2d 923) by limiting any...