Schrader v. Civil Service Com'r of Monroe County

• Decision Date: 12 July 1976
• Citation: 385 N.Y.S.2d 644,53 A.D.2d 210
• Parties: Application of Fred SCHRADER, Respondent, v. CIVIL SERVICE COMMISSIONER OF MONROE COUNTY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 644

385 N.Y.S.2d 644

53 A.D.2d 210

Application of Fred SCHRADER, Respondent, v. CIVIL SERVICE COMMISSIONER OF MONROE COUNTY, Appellant.

Supreme Court, Appellate Division, Fourth Department.

July 12, 1976.

William J. Stevens, County Atty., Rochester, for appellant (Joseph C. Pilato, Rochester, of counsel).

Pat V. Dinolfo, Rochester, for respondent.

Before MOULE, J.P., and CARDAMONE, SIMONS, MAHONEY and DILLON, JJ.

MAHONEY, Justice.

This is an Article 78 proceeding to review, annul or modify a penalty of termination resulting from charges preferred against the petitioner resulting in the hearing, after which the hearing officer recommended suspension. The Chief of Police ordered a termination of employment following which the petitioner, a police officer, elected to appeal the determination of penalty to the Monroe County Civil Service Commission pursuant to Civil Service Law, § 76. The Commission sustained the penalty of termination on July 11, 1975. At Special Term petitioner sought modification of the penalty and, upon the hearing minutes and all the proceedings heretofore had in the matter, the court remanded the question of penalty to the Commission 'for reconsideration and imposition of an appropriate lesser penalty'.

The facts are not disputed, namely, that petitioner was absent without leave on nine working days. The petitioner returned to work and was assigned to different duties, after which disciplinary charges were filed pursuant to Civil Service Law, § 75. Neither the Commissioner of Police nor the City of Rochester is a party to this proceeding.

Section 76 of the Civil Service Law gives employees aggrieved by disciplinary determinations an election of remedies for appealing such determinations. Under the statute the employee may appeal either 'to the state or municipal commission having jurisdiction' or 'to the court in accordance with the provisions of article seventy-eight of the civil practice law and rules'. Subdivision 3 of section 76 provides that once the employee elects to appeal to the appropriate civil service commission the 'decision of such civil service commission shall be final and conclusive, and Not subject to further review in any court' (emphasis added).

In Matter of Pauling v. Smith (46 A.D.2d 759, 361 N.Y.S.2d 16) the court stated, '* * * it has been held that the prohibition against any further review by a court does not bar entirely judicial review, and that such review is permitted when it is claimed that the action of the commission was 'purely arbitrary'. (Matter of) Barbarito v. Moses, 31 A.D.2d 898, 297 N.Y.S.2d 831; see, also, Matter of Board of Educ. of City of N.Y. v. Allen, 6 N.Y.2d 127, 136, 141, 188 N.Y.S.2d 515, 520, 524, 160 N.E.2d 60, 64, 67.' That decision was not appealed.

In Matter of Santella v. Hoberman (29 A.D.2d 655, 286 N.Y.S.2d 647) the court, in considering the same section with which we are concerned, stated:

'Although it is provided in subdivision 3 of section 76 of the Civil Service Law that a determination on appeal of an allegedly aggrieved employee shall not be subject to court review, there remains for court determination the question of a disposition by the Commission which is 'purely arbitrary' (Matter of Board of Educ. of City of N.Y. v. Allen, 6 N.Y.2d 127, 136, 188 N.Y.S.2d 515, 520, 160 N.E.2d 60, 64; Matter of Taylor v. New York City Tr. Auth., 25 A.D.2d 682, 269 N.Y.S.2d 75, affd. 19 N.Y.2d 724, 279 N.Y.S.2d 181, 225 N.E.2d 886).'

There was no appeal from this decision.

It is apparent that the Pauling and Santella cases, Supra, rely heavily on the holding in Matter of Board of Educ. of City of N.Y. v. Allen (6 N.Y.2d 127, 188 N.Y.S.2d 515, 160 N.E.2d 60). However, that decision was based upon a consideration of an interpretation of the statutory scheme of Education Law, § 310 which does Not provide for an election between an article 78 review or an appeal to the Commissioner of Education.

The Allen rationale, if applied to the present case, would directly contradict the express and clear meaning of Civil Service Law, § 76. Matter of Taylor v. New York City Tr. Auth. (25 A.D.2d 682, 269 N.Y.S.2d 75), which was affirmed by the Court of Appeals (19 N.Y.2d 724, 279 N.Y.S.2d 181, 225 N.E.2d 886), is controlling under the circumstances of the case before us. The Taylor court at the appellate division stated: 'We agree with the holding at Special Term that petitioner, by appealing from his dismissal to the respondent Civil Service Commission, elected his remedy and was foreclosed from seeking judicial review, since his dismissal was not 'purely arbitrary."

The statutory scheme of Civil Service Law, § 76 is significantly different from Education Law, § 310 and, since the Civil Service Law provides for an election of remedies and the petitioner was notified of this option, he is bound by his decision. In Matter of Hibbert v. New York City Tr. Auth. (28 A.D.2d 1139, 284 N.Y.S.2d 717), it was stated, '(w)e agree with the holding that petitioner, by appealing to the Civil Service Commission, elected his remedy and was foreclosed from seeking judicial review, since his dismissal was not 'purely arbitrary' (Matter of Taylor v. New York City Tr. Auth., 25 A.D.2d 682, 269 N.Y.S.2d 75, affd. 19 N.Y.2d 724, 279 N.Y.S.2d 181, 225 N.E.2d 886).'

It is readily apparent from the foregoing that the appellate division decisions in using the words 'purely arbitrary' relied upon the Court of Appeals in Allen which stated, 'The term 'arbitrary', standing by itself, would be quite sufficient to make it plain that only a narrow review of the Commissioner's decisions is available in the courts. In the above-cited cases we undertook to emphasize the point by employing the phrase 'purely arbitrary". (6 N.Y.2d p....