Yeampierre v. Gutman
| Decision Date | 12 April 1976 |
| Citation | 382 N.Y.S.2d 104,52 A.D.2d 608 |
| Parties | In the Matter of Candido YEAMPIERRE, Respondent, v. Daniel GUTMAN, Hearing Referee, etc., et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Stuart Riedel, Brooklyn (Kenneth Howard Schiffrin, Brooklyn, of counsel), for appellants.
Finger, Goldberg, Zinner & Finger, Kew Gardens (Stanley Steven Zinner, Kew Gardens, of counsel), for respondent.
Before HOPKINS, Acting P.J., and COHALAN, CHRIST, SHAPIRO and TITONE, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 78 to compel petitioner's reinstatement to his position with the New York City Transit Authority, with back pay from December 2, 1974, the date of his suspension, the appeal is from a judgment of the Supreme Court, Kings County, dated April 10, 1975, which (1) directed that petitioner be paid his regular salary as of January 2, 1975 and (2) ordered that salary payments continue until the pending disciplinary proceeding is concluded or until petitioner is reinstated.
Judgment modified by adding thereto a provision that the payments to petitioner are to be reduced by the amount of compensation which he may have earned in other employment or occupation during the period of his suspension. As so modified, judgment affirmed, without costs or disbursements, and proceeding remanded to Special Term for further proceedings in accordance herewith.
On November 4, 1974 petitioner was arrested and charged with the crime of criminal sale of a controlled substance in the first degree. He was subsequently suspended, without pay, effective December 2, 1974; a departmental hearing was scheduled for December 13, 1974. That hearing was subsequently adjourned (at petitioner request) to December 18, 1974 and was thereafter adjourned unilaterally by the authority, upon the request of the District Attorney of Bronx County that the departmental trial await the conclusion of the criminal proceeding. We note that both the disciplinary proceeding and the criminal charges are still pending and that petitioner has not received his salary since the date of his suspension.
Subdivision 3 of section 75 of the Civil Service Law provides that, pending the determination of charges against a civil service employee, he may not be suspended without pay for a period in excess of 30 days and that, upon being found guilty of the charges against him, the only permissible punishments are: (1) a reprimand, (2) a fine not to exceed $100, (3) suspension without pay for a period not to exceed two months, (4) demotion in grade and title or (5)...
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