IN RE: Douglas G. LOTTEN (1999)

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

IN RE: Douglas G. LOTTEN, respondent, v. BOARD OF FIRE COMMISSIONERS OF TERRYVILLE FIRE DISTRICT, appellant.

Decided: June 21, 1999

SONDRA MILLER, J.P., FRED T. SANTUCCI, SANDRA J. FEUERSTEIN and NANCY E. SMITH, JJ.

Sapienza and Frank, Massapequa, N.Y. (Salvatore A. Sapienza of counsel), for appellant. Marotta & Kristiansen, Hauppauge, N.Y. (Frank Marotta of counsel), for respondent.

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Fire Commissioners of Terryville Fire District, dated August 28, 1997, which suspended the petitioner for a period of 15 days, without a hearing, the appeal is from a judgment of the Supreme Court, Suffolk County (Gerard, J.), dated May 7, 1998, which granted the petition.

ORDERED that the judgment is affirmed, with costs.

The petitioner was improperly suspended on the ground of misconduct or incompetency without a formal charge being filed against him and without a hearing (see, General Municipal Law § 209-l; Matter of Schenck v. Fire Council of Sea Cliff Fire Dept., 35 Misc.2d 685, 231 N.Y.S.2d 511; Matter of Gardner v. Ward, 199 N.Y.S.2d 953).

The appellant's remaining contentions lack merit.

MEMORANDUM BY THE COURT.

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