Maurer v. Cappelli

• Decision Date: 23 July 1973
• Citation: 42 A.D.2d 758,346 N.Y.S.2d 154
• Parties: In the Matter of Theodore W. MAURER, City Manager of the City of Newburgh, Respondent, v. Humbert M. CAPPELLI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 154

346 N.Y.S.2d 154

42 A.D.2d 758

In the Matter of Theodore W. MAURER, City Manager of the City of Newburgh, Respondent, v. Humbert M. CAPPELLI, Appellant.

Supreme Court, Appellate Division, Second Department.

July 23, 1973.

Before RABIN, P.J., and HOPKINS, MUNDER, MARTUSCELLO and SHAPIRO, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to article 78 of the CPLR by Humbert M. Cappelli to compel reinstatement to his position of chief of police of the City of Newburgh, the appeal is from an order of the Supreme Court, Orange County, dated April 6, 1972, which denied the application 'at the present time.'

Order reversed, on the law, with $20 costs and disbursemetns, and (1) application granted to the extent of directing respondent to pay appellant (a) his salary beginning as of 30 days after commencement of his suspension and continuing until (i) final determination of the administrative charges against him, under which a hearing had been noticed, pursuant to section 75 of the Civil Service Law, or (ii) vacation of petitioner's office pursuant to section 30 (subd. 1, par. e) of the Public Officers Law, (b) less any amounts petitioner may have earned during that period, and (2) proceeding remanded to Special Term for a hearing and determination on said issues and thereafter the making of an appropriate order.

Subdivision 3 of section 75 of the Civil Service Law provides:

'Suspension pending determination of charges; penalties. Pending 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 such officer or employee is found guilty of the charges, the penalty or punishment may consist of a reprimand, a fine not to exceed one hundred dollars to be deducted from the salary or wages of such officer or employee, suspension without pay for a period not exceeding two months, demotion in grade and title, or dismissal from the service; provided, however, that the time during which an officer or employee is suspended without pay may be considered as part of the penalty. If he is acquitted, he shall be restored to his position with full pay for the period of suspension less the amount of compensation which he may have earned in any other employment or occupation and any unemployment insurance benefits he may have received during such period * * *.'

The clear import of that provision is to...