Lichtensteiger v. Housing and Development Administration

• Decision Date: 28 November 1972
• Citation: 40 A.D.2d 810,338 N.Y.S.2d 201
• Parties: In the Matter of Frank LICHTENSTEIGER, Petitioner-Appellant, v. HOUSING AND DEVELOPMENT ADMINISTRATION, Respondent-Respondent, For Review under Article 78 of the CPLR, etc.
• Court: New York Supreme Court — Appellate Division

Page 201

338 N.Y.S.2d 201

40 A.D.2d 810

In the Matter of Frank LICHTENSTEIGER, Petitioner-Appellant, v. HOUSING AND DEVELOPMENT ADMINISTRATION Respondent-Respondent, For Review under Article 78 of the CPLR, etc.

Supreme Court, Appellate Division, First Department.

Nov. 28, 1972.

P. G. Chevigny, New York City, for petitioner-appellant.

S. Buchsbaum, New York City, for respondent-respondent.

Before McGIVERN, J.P., and NUNEZ, KUPFERMAN, McNALLY and EAGER, JJ.

PER CURIAM.

Judgment, Supreme Court, New York County, entered April 27, 1972, dismissing petition, unanimously reversed, on the law, without costs and without disbursements, and vacated, and the proceeding remanded to allow respondent to serve a responsive pleading.

Petitioner in this Article 78 proceeding, seeking the vacatur of his dismissal as an employee of the New York City Housing and Development Administration and reinstatement with back pay, alleges that his services were arbitrarily terminated solely because he testified before the City Planning Commission in his capacity as a member of his Community Planning Board. There is no denial by the respondent of petitioner's factual allegations which at this point stand uncontradicted. Respondent moved to dismiss on the law.

Although a person does not have a right to public employment, he may not be dismissed for a reason which violates his constitutional rights. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Matter of Tischler v. Board of Education, Monroe, 37 A.D.2d 261, 323 N.Y.S.2d 508 (2d Dept. 1971). The rule has been restated most recently by the Supreme Court in Perry et al v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972) as follows:

'For at least a quarter century, this Court has made clear that even though a person has no 'right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not act. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.'

Petitioner alleges that he was exercising his First Amendment rights when he testified before the Planning Commission. His opinion on a public issue is protected under the First Amendment from punishment by a public...