Levine v. New York City Transit Authority

• Citation: 70 A.D.2d 900,417 N.Y.S.2d 307
• Parties: Edward M. LEVINE, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY et al., Appellants.
• Decision Date: 11 June 1979
• Court: New York Supreme Court Appellate Division

Page 307

417 N.Y.S.2d 307

70 A.D.2d 900

Edward M. LEVINE, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY et al., Appellants.

Supreme Court, Appellate Division, Second Department.

June 11, 1979.

Alphonse E. D'Ambrose, Brooklyn (Kenneth Howard Schiffrin, Helen R. Cassidy and James E. Farrell, Jr., Brooklyn, of counsel; Robert A. Rifkin, Brooklyn, on the brief), for appellants.

Litman, Friedman, Kaufman & Asche, New York City (Lewis R. Friedman, Richard M. Asche and Herman Kaufman, New York City, of counsel), for respondent.

Before SUOZZI, J. P., and O'CONNOR, LAZER and GULOTTA, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to compel the New York City Transit Authority and Harold L. Fisher, as its Chairman, to (1) terminate petitioner's suspension without pay and (2) remit to petitioner all of the back pay withheld from him since January 21, 1978, the appeal is from a judgment of the Supreme Court, Kings County, dated November 3, 1978, which directed appellants to (a) "reinstate petitioner" or, if his suspension is to be continued, restore his salary pending a final determination of the disciplinary charges against him, and (b) "pay petitioner all back pay withheld from him since January 21, 1978, less any amounts earned by petitioner from outside sources".

Judgment modified, on the law, by deleting therefrom the direction to reinstate petitioner. As so modified, judgment affirmed, without costs or disbursements.

Petitioner was a supervisory employee in the transit authority's Maintenance of Way Department at the time of his suspension without pay on December 22, 1977 as the result of his indictment by a Federal Grand Jury on charges of conspiracy to commit bribery and bribery. He was subsequently indicted on other charges by a second Federal Grand Jury in May of 1978, but, insofar as it appears on the present record, he has yet to be tried on either indictment. At the request of the United States Attorney for the Eastern District of New York, petitioner's disciplinary proceeding has been stayed pending disposition of the criminal charges against him; however, the section of law pursuant to which petitioner was suspended (Civil Service Law, § 75) provides, in pertinent part, that "(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 " (subd. 3; emphasis supplied). Clearly, the suspension at bar has exceeded the statutory time limit of 30 days, and it was on this basis that Special Term granted the petition.

The recent decisions of this court in Matter of Yeampierre v. Gutman, 52 A.D.2d 608, 382 N.Y.S.2d 104, mot. for lv. to app. dsmd. 40 N.Y.2d 918 and Matter of Coping v. New York City Tr. Auth., 57 A.D.2d 621, 393 N.Y.S.2d 763 have upheld the right of an employee suspended pursuant to section 75 of the Civil Service Law to receive his salary for the period following the first 30 days of his suspension whenever, through no fault of his own, the charges against him have not been determined within that time. The authority seeks to distinguish those holdings from the present case, however, on the ground that the nature of the crimes which led to the employee's suspension here reaches to the core of his duties as a supervisor in the Maintenance of Way Department, i. e., that the petitioner, by virtue of his position, enjoyed a fair measure of control over contracts to provide the authority with electrical supplies necessary to the proper operation of the subway system, and that the criminal charges against him relate, in substance, to some of those contracts.

Although we are sympathetic to the authority's position, the statutory provision in question is clearly worded, and makes no distinction based upon the type or nature of the misconduct or incompetence leading to the suspension. Thus, while it is not difficult to understand that the authority has little desire to permit petitioner to resume his duties or continue to draw his salary, we are faced with a statute whose "clear import * * * is to compel (the) governing body which prefers charges against a civil servant to move the hearing of the charges expeditiously, with the result that if the hearing not be held within 30 days after the charges are preferred the employee is then to begin to receive his salary until the final determination of the charges against him, even if he not be then reinstated to his position" (Matter of Maurer v. Cappelli, 42 A.D.2d 758, 759, 346 N.Y.S.2d 154, 156).

In our view, the authority's alternate contention, that it has no control over the scheduling of the hearing in this case inasmuch as the prosecutor has not only requested its co-operation in postponing the hearing, but holds all of the necessary evidence, must also be deemed inadequate (1) in light of the statute, the clear intent of which is to protect public employees from prolonged payless suspensions on undetermined charges, and (2) in light of the further fact that a contrary holding would render an employee's unqualified statutory right to the restoration of salary contingent upon the accident of whether the prosecuting authority "controls" the necessary evidence. No part of the holdings in Matter of...