TRAHAN v. JEFFERSON COUNTY DEPARTMENT OF SOCIAL SERVICES (2001)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Daniel TRAHAN, Petitioner, v. JEFFERSON COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent.

Decided: March 21, 2001

PRESENT: GREEN, J.P., WISNER, HURLBUTT and BURNS, JJ.

Robert Peter Bogdan, Sackets Harbor, for petitioner. Victor E. Speciale, Watertown, for respondent.

Petitioner was terminated from his position as a caseworker for respondent after a hearing pursuant to Civil Service Law § 75. Petitioner then commenced this CPLR article 78 proceeding seeking reinstatement, and the proceeding was transferred to this Court pursuant to CPLR 7804(g). We conclude that the determination terminating petitioner “was made in violation of lawful procedure” (CPLR 7803[3] ). Respondent's commissioner, who reviewed the Hearing Officer's report and made the final determination to terminate petitioner, also preferred the charges, selected the Hearing Officer and testified at the hearing. Thus, he was disqualified from acting on the charges (see, Matter of Norton v. Village of Phoenix Bd. of Trustees, 245 A.D.2d 1143, 667 N.Y.S.2d 540). We therefore annul the determination and remit the matter to respondent for a de novo determination by a person who was not involved in the hearing based upon the original hearing record and the report of the Hearing Officer (see, County Law § 401[1], [2]).

Determination unanimously annulled on the law without costs and matter remitted to respondent for further proceedings.

MEMORANDUM:

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