Stein v. Murphy

• Decision Date: 07 May 1974
• Citation: 44 A.D.2d 796,355 N.Y.S.2d 133
• Parties: Application of Barry D. STEIN, Petitioner-Respondent, For a Judgment under Article 78 of the CPLR, v. Patrick V. MURPHY, as Commissioner of the Police Department of the City of New York, et al., etc., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 133

355 N.Y.S.2d 133

44 A.D.2d 796

Application of Barry D. STEIN, Petitioner-Respondent, For a Judgment under Article 78 of the CPLR, v. Patrick V. MURPHY, as Commissioner of the Police Department of the City of New York, et al., etc Respondents-Appellants.

Supreme Court, Appellate Division, First Department.

May 7, 1974.

H. L. Greenberg, Brooklyn, for petitioner-respondent.

E. B. Hennefeld, New York City, for respondents-appellants.

Before NUNEZ, J.P., and KUPFERMAN, STEUER, CAPOZZOLI and LANE, JJ.

PER CURIAM.

Order, Supreme Court, New York County, entered on June 22, 1973, affirmed for the reasons expressed by the Court at Special Term, without costs and without disbursements.

All concur except KUPFERMAN and STEUER, JJ., who dissent in separate memoranda, as follows:

KUPFERMAN, Justice (dissenting).

While I am in general accord with the dissent filed by Mr. Justice STEUER, I approach the matter differently. The petitioner was indicted on February 25, 1970 and on the same day suspended without pay. On January 28, 1971, he was acquitted of all counts contained in the indictment. Obviously, he would not have wanted a hearing on the pending Police Department charges until after the conclusion of the criminal proceedings. A hearing on the Police Department specifications was held on June 18, 1971, some 4 1/2 months after the conclusion of the criminal proceedings, certainly within a reasonable time. Four of the seven Police Department specifications having been sustained, under the provision of Administrative Code Section 434a--20.0 there is no basis for payment during the period of suspension.

This whole area of payment during suspension or removal needs further consideration by the Legislature. See dissent in Picconi v. Lowery, 43 A.D.2d 928, 352 N.Y.S.2d 481.

STEUER, Justice (dissenting):

I would reverse and dismiss the petition.

Petitioner is a member of the New York City Police Department. On February 25, 1970, he was suspended without pay. On March 19 he was served with charges. After a hearing on June 18, 1971, petitioner was found guilty of four of the seven charges and was fined and lost 30 days vacation. He was reinstated on August 19, 1971. He did not appeal from this disposition.

The petition seeks payment of petitioner's salary during the period of his suspension. Special Term ordered a trial of the issue as to what extent respondent may have been responsible for the delay beyond 30 days in reaching a determination of the charges. I believe this is immaterial.

There can be little doubt that petitioner's rights are governed by Administrative Code section 434a--20.0. That section provides for full pay during the period of suspension but only if the suspended officer is not found guilty of the charges. The Court of Appeals found the language of the section to be clear and unequivocal (Brenner v. City of New York, 9 N.Y.2d 447, 450, 214 N.Y.S.2d 444, 445, 174 N.E.2d 526, 527). The court did state (at p. 452, 214 N.Y.S.2d at p. 446, 174 N.E.2d at p. 528) that the mandate of the statute was...