Palermo v. Eisenberg

• Decision Date: 06 March 1975
• Citation: 367 N.Y.S.2d 378,81 Misc.2d 1014
• Parties: Frances PALERMO, Petitioner, v. Donald H. EISENBERG, Superintendent Nassau County Medical Center, Respondent.
• Court: New York Supreme Court

Page 378

367 N.Y.S.2d 378

81 Misc.2d 1014

Frances PALERMO, Petitioner, v. Donald H. EISENBERG, Superintendent Nassau County Medical Center, Respondent.

Supreme Court, Special Term, Nassau County, Part I.

March 6, 1975.

Carlsson & Carlsson, East Meadow, for petitioner.

John F. O'Shaughnessy, County Atty. of Nassau County, Mineola, for respondent.

DANIEL G. ALBERT, Justice.

Petitioner Frances Palermo has been employed at the Nassau County Medical Center as a hospital aide I. On or about December 5, 1974, petitioner was served with formal charges pursuant to Section 75 of the Civil Service Law and in accordance with subsection 3 thereof, she was suspended without pay for a period of thirty (30) days. The formal charges include, Inter alia, that petitioner is continuously late in reporting for work, refuses to wear the proper uniform, refuses to perform the work assigned to her in the regular course of her duties and leaves her post without permission, thereby disrupting the established procedures of the hospital. Other charges lodged against petitioner date back to 1972.

Petitioner categorically denies the charges except those which are admitted with an explanation, and she further denies any misconduct prejudicial to the discipline at her department in the Medical Center. Petitioner commenced this Article 78 proceeding alleging that her suspension deprived her of property without due process of law in violation of the Fourteenth Amendment to the United States Constitution, in that she was granted no hearing prior to her suspension. She seeks a Court order reinstating her to her position as a hospital aide I.

Respondent has moved for judgment pursuant to CPLR 7804, subd. (d) dismissing the petition on the ground that petitioner has shown no basis for the relief sought. The Attorney General has intervened pursuant to section 71 of the Executive Law to uphold the constitutionality of section 75, subd. (3) of the Civil Service Law.

The pivotal issue in this proceeding concerns the constitutionality of Civil Service Law, § 75, subd. (3) which provides for a suspension without pay for a period not exceeding thirty days pending the hearing and determination of charges of incompetency or misconduct. The statute further provides that if the employee is acquitted, said employee shall be restored to his position with full pay for the period of suspension.

There is no doubt that petitioner's civil service employment is a property right which cannot be taken from her without satisfying the dictates of due process of law (Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.E.2d 570; Board of Regents v. Roth, 408 U.S. 546, 92 S.Ct. 2701, 33 L.Ed.2d 548). The question presented is whether due process requires a hearing prior to suspension.

Petitioner relies upon a line of Supreme Court cases which generally hold that a hearing is required prior to a nonfinal deprivation of property in the absence of extraordinary circumstanc (Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1933, 32 L.Ed.2d 556 (replevin of personal property); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (suspension of motor vehicle license and registration); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Welfare recipient); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1120, 23 L.Ed.2d 349 (prejudgment garnishment)). More recent Supreme Court pronouncements, Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15; Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406, indicate that the import of the above cases has been limited, and that the focus of the inquiry should be on whether the statutory procedures reasonably accommodate the interests of all parties.

The Court of Appeals decision in Matter of Jerry v. Board of Education, 35 N.Y.2d 534, 364 N.Y.S.2d 440, 324 N.E.2d 106 (decided December 20, 1974), which relied upon the most recent Supreme Court decisions, is dispositive of the issue presented herein. In Matter of Jerry, the Court dealt with cases arising under section 3020--a of the Education Law concerning...