Ridings v. Vaccarello
Decision Date | 20 December 1976 |
Citation | 390 N.Y.S.2d 152,55 A.D.2d 650 |
Parties | In the Matter of Alan M. RIDINGS, Petitioner, v. Anthony T. VACCARELLO, as Commissioner of Sanitation, Department of Sanitation, Environmental Protection Administration, Respondent. |
Court | New York Supreme Court — Appellate Division |
Trippe & Vaughan, Brooklyn (John J. D'Emic, Brooklyn, of counsel), for petitioner.
W. Bernard Richland, Corp. Counsel, New York City (Susan L. Bloom and L. Kevin Sheridan, New York City, of counsel), for respondent.
Before HOPKINS, Acting P.J., and MARTUSCELLO, DAMIANI and SUOZZI, JJ.
MEMORANDUM BY THE COURT.
Proceeding pursuant to CPLR article 78 to review respondent's determination, dated February 7, 1976 and made after a hearing, which dismissed petitioner from his position as a sanitation man.
Petition granted and determination annulled, on the law, without costs or disbursements, and charges dismissed.
On November 3, 1975 Foreman Santora was punched and beaten by Sanitation Man Mayer. The petitioner, Sanitation Man Ridings, was charged with aiding and abetting Mayer in the assault and with failing to come to the aid of Santora. After a hearing, the petitioner was dismissed from his employment. In our opinion, the determination of the respondent Commissioner is not supported by substantial evidence (see CPLR 7803, subd. 4).
Petitioner has a perfect, blemish-free record of employment for the five years he has been a sanitation man. Respondent has drawn the inference most unfavorab to petitioner from circumstances which appear to be wholly innocuous. Respondent's main point is that petitioner 'lured' Santora into the section room in order to facilitate the attack upon him by Sanitation Man Mayer. In fact, all petitioner did was to suggest that Santora speak to Mayer if he intended to replace Mayer on the day's run. Petitioner's testimony, supported by that of Sanitation Man Bentivegna, was that he knew Mayer was going to be replaced for the day. Thus, he had reason to suggest that Santora enter the section room to talk to Mayer. Additionally, Superintendent Wietzychowski instructed Santora to send Mayer up to speak to him if he was going to be replaced for the day. Thus, even without petitioner's suggestion, Santora was going to speak to Mayer. Moreover, if Mayer was going to be replaced, Santora had to see Mayer and send him to the sick line. Furthermore, the section room was also Santora's office, and he would have entered it even without petitioner's suggestion.
Petitioner gave a valid and logical explanation for his presence in the section room during the attack. Before Santora entered the room, petitioner returned there to retrieve his gloves from his locker, as they were too dirty to carry on his person until necessary. Petitioner was in the room before Santora entered, and therefore...
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