Pelaez v. Waterfront Commission of New York Harbor

• Decision Date: 25 August 1980
• Citation: 77 A.D.2d 947,431 N.Y.S.2d 134
• Parties: In the Matter of Alfonso PELAEZ, Respondent, v. WATERFRONT COMMISSION OF NEW YORK HARBOR, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 134

431 N.Y.S.2d 134

77 A.D.2d 947

In the Matter of Alfonso PELAEZ, Respondent, v. WATERFRONT COMMISSION OF NEW YORK HARBOR, Appellant.

Supreme Court, Appellate Division, Second Department.

Aug. 25, 1980.

David B. Greenfield, New York City (Robert A. Pin, New York City, of counsel), for appellant.

Fein, Silberbush, Katz & Linn, P. C., New York City (Michael Linn, New York City, of counsel), for respondent.

Before GULOTTA, J. P., and MARGETT, O'CONNOR and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to compel the Waterfront Commission of New York Harbor to "lift" petitioner's temporary suspension from duty without pay, the appeal is from a judgment of the Supreme Court, Kings County, dated March 28, 1979, which granted the petition in part and directed that petitioner "shall be suspended with pay until the completion, but not determination, of the Commission's hearing".

On April 30, 1979 petitioner's motion to dismiss the appeal on the ground that it involved a nonfinal determination in an article 78 proceeding was granted by this court and the commission's cross motion for leave to appeal was denied (Matter of Pelaez v. Waterfront Comm. of N.Y. Harbor, 70 A.D.2d 1066). The Court of Appeals granted leave to appeal, determined that the order of Special Term was a final order, and remitted the matter to this court for further proceedings in accordance with its memorandum decision (48 N.Y.2d 1021, 425 N.Y.S.2d 781, 402 N.E.2d 120).

Judgment reversed, on the law, without costs or disbursements, and matter remitted to Special Term for further proceedings in accordance herewith.

Petitioner, a 20-year employee of the Waterfront Commission of New York Harbor (hereafter the commission), was suspended by the commission without pay, effective March 14, 1979, pending a determination of charges that involved petitioner's allegedly clandestine meetings with a labor leader who had been, at times, under investigation by the commission and by other law enforcement agencies. The meeting came to light when petitioner, a nontenured supervisory special agent of the commission, was summoned to appear before a Federal Grand Jury that was hearing evidence against the labor leader.

Petitioner successfully challenged the suspension without pay before Special Term as arbitrary and capricious and violative of due process. We reverse.

We assume, without deciding, that the commission is correct in its position that it had the right to dismiss petitioner from his position without a hearing, as the latter was a nontenured employee (see Matter of Beneky v. Waterfront Comm. of N.Y. Harbor, 42 N.Y.2d 920, 397 N.Y.S.2d 995, 366 N.E.2d 1349). Having chosen instead not to exercise its right of summary dismissal but, rather, to grant petitioner a hearing, the commission had the power to suspend petitioner, without pay, in the interim, just as a policeman may be suspended without pay pursuant to section 155 of the Town Law and section 434a-20.0 of the New York City Administrative Code. We further find that such a payless suspension may continue for a reasonable period or, stated another way, so long as the trial...