Amkraut v. Hults , 21 A.D.2d 260 ( 1964 )

Stevens, J.

Judgment appealed from affirmed, without costs to either party. Subdivision 3 of section 75 of the Civil Service Law, insofar as pertinent, provides “ [p] ending the hearing and determination of charges of incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days.” The statute thereafter provides for possible penalties.

¡Respondent Amkraut was suspended from his position March 2,1961, at which time charges were filed against him. Hearings on the charges were held from time to time, the final hearing occurring May 2, 1961, with an order of dismissal dated May 31, 1961, in which appellant declared ‘ ‘ I hereby remove him [respondent] from office.” The determination was confirmed in this court (16 A D 2d 756, mot. for lv. to app. den. 11 N Y 2d 647, mot. for rearg. den. 12 N Y 2d 715).

Amkraut sued to recover payment of wages for the period of suspension in excess of 30 days prior to his dismissal. He claimed to be without fault in respect to the various adjournments and extensive delay in reaching a determination, and there was no evidence to the contrary. This appeal is taken from a judgment rendered in favor of Amkraut.

The single question is—May an employee suspended for a period in excess of 30 days, who is eventually discharged, recover wages for the excess period, when the delay in disposition was not occasioned by his fault?

The precise question has not been previously determined.

In Matter of Bentley v. Henninger (10 A D 2d 900 [4th Dept.]) the single question before the court was whether there was substantial evidence to support a determination finding appellant guilty of insubordination and imposing suspension as a measure of discipline. The court found there was such evidence. However, in reference to a question by appellant as to the length of time which elapsed between the suspension and eventual determination the court observed “ appellant may be entitled to back pay for the period of suspension in excess of the statutory limit, to the extent to which the delay in reaching a determination was not attributable to his own conduct”. The court pointed out that appellant’s remedy would be to bring an independent action. (Matter of Carville v. Board of Educ. of Utica City School Dist., 11 AD 2d 1092.)

In Matter of Perry v. Mauhs (14 A D 2d 624 [3d Dept.]) where appellant’s conduct or misconduct caused the delay in proceeding with the hearings and eventual determination, the court affirmed the Commissioner’s denial of a motion to reopen the case.

In Paris v. City of New York (189 Misc. 445) the employee was suspended September 1, 1945, and the determination made September 29,1945, finding the employee guilty and suspending her, as the statute permitted (then Civil Service Law, § 22, subd. 2), for an additional period of two months. The suspension prior to determination did not exceed 30 days. And in Hagan v. City of Brooklyn (126 N. Y. 643) the court pointed out that a public officer, unlawfully removed from office to which another is appointed, who acquiesced in the removal and had not obtained an order of reinstatement, could not recover the salary therefor. That, however, is not the present case. Moreover, while there was no formal application for reinstatement in the case before us, the record does indicate that at the hearing on April 19,1961, Amkraut, by counsel, demanded of the hearing officer that he be restored with pay, effective as of April 1, 1961. The hearing Referee stated he would refer the matter to his superior and suggested also that counsel take up the demand elsewhere because the Referee doubted his authority as to that question. In Matter of Phinn v. Kross (26 Misc 2d 889, affd. 15 A D 2d 641) the court upheld as proper a dismissal nunc pro tunc upon a “ Redetermination of Punishment ” by the Commissioner of Correction, upon a remand by the Appellate Division. The court specifically held ‘ ‘ the redetermination may lawfully be made effective as of the date of the original determination ” (p. 895). In this case the dismissal was effective as of May 31, 1961.

The language of the statute indicates an intention that hearings on charges should not be unreasonably protracted, but should be disposed of expeditiously. Presumably when charges are filed the accuser is then prepared to present evidence in support of such charges. If a delay in proceeding is occasioned by the conduct of the accused he cannot justly be heard to complain nor be allowed a recompense for the period involved. As a practical matter one accused frequently has all income cut off during a period of suspension—not merely the income from the job vacated. He is reluctant to seek other employment especially if he has acquired some form of tenure or substantial pension rights in the job from which he is suspended. In all fairness then a prompt disposition is desirable from the standpoint of all parties. Where that does not occur, he who is responsible should assume the risk of liability for some compensation. The judgment should be affirmed.