Kearse v. Fisher
| Decision Date | 20 February 1979 |
| Citation | 67 A.D.2d 963,413 N.Y.S.2d 466 |
| Parties | Isaiah D. KEARSE, Petitioner, v. Harold FISHER, Individually, etc., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Bernard M. Alter, Brooklyn, for petitioner.
Alphonse E. D'Ambrose, Brooklyn (John A. Murray and George S. Grupsmith, New York City, of counsel), for respondent.
Before TITONE, J. P., and SUOZZI, O'CONNOR and LAZER, JJ.
MEMORANDUM BY THE COURT.
Proceeding pursuant to CPLR article 78 to review a determination of the New York City Transit Authority, dated June 16, 1977, which, after a hearing, dismissed the petitioner from his position as a railroad clerk.
Petition granted to the extent that the determination is modified, on the law, by adding thereto a provision that the respondent is to hold a hearing on the issue of back pay, if any, due petitioner. As so modified, determination confirmed, without costs or disbursements and petition is otherwise dismissed on the merits.
The petitioner was suspended from his position as a railroad clerk on August 18, 1976 and was dismissed on June 16, 1977. Even though the petitioner was dismissed from service, he is entitled, under subdivision 3 of section 75 of the Civil Service Law, to back pay for the period in excess of the initial 30 days after his suspension, less such sums as may have been earned from other employments during the subject period. However, the petitioner may only recover wages to the extent that any delay beyond the 30-day period is not attributable to him (see Matter of Yeampierre v. Gutman, 52 A.D.2d 608, 382 N.Y.S.2d 104). Therefore, a hearing to determine the amount of back pay, if any, owed the petitioner is required.
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