Carnes v. Lown , 58 A.D.2d 1030 ( 1977 )

Determination unanimously modified, in accordance with memorandum, and, as modified, confirmed, without costs. Memorandum: Petitioner, an employee of the highway department of respondent town, was discharged from his job by the superintendent of highways. He was specifically charged with: (1) speeding and reckless driving while operating a town truck; (2) changing his working hours without permission; (3) wasting time on the job; and (4) smashing a utility pole while operating a truck. A hearing was held on the charges in which petitioner participated without an attorney. Much of the testimony given to prove the charges consisted of hearsay statements. However, we find that the first three charges were supported by substantial evidence. In all the circumstances, the discharge of petitioner for his misconduct is too severe and constitutes excessive punishment. He was discharged on July 8, 1976. Separation from his job since that date without wages is a sufficient and proper measure of punishment (see Matter of Pell v Board of Educ., 34 NY2d 222). Petitioner should be immediately reinstated to his former job. (Article 78 proceeding transferred by order of Livingston Supreme Court.) Present—Simons, J. P., Dillon, Hancock, Denman and Goldman, JJ.