IN RE: Louis MALDARELLI

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

IN RE: Louis MALDARELLI, Petitioner-Respondent, v. John DOHERTY, as Commissioner of the Department of Sanitation of the City of New York, Respondent-Appellant.

Decided: May 18, 2004

ANDRIAS, J.P., SAXE, SULLIVAN, GONZALEZ, JJ. Michael A. Cardozo, Corporation Counsel, New York (Ellen Ravitch of counsel), for appellant. Kirschner & Cohen, P.C., Great Neck (Steven B. Kirschner of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Robert D. Lippmann, J.), entered January 23, 2003, which granted petitioner's application to annul and vacate respondent Sanitation Commissioner's determination, dated October 9, 2001, summarily terminating his employment upon his conviction of insurance fraud in the third degree, and directed petitioner's reinstatement with back pay, unanimously affirmed, without costs.   Appeal from order, same court and Justice, entered December 10, 2002, which fixed the amount of back pay due petitioner, unanimously dismissed, without costs, as abandoned.

By letter dated October 9, 2001, the City Department of Sanitation notified petitioner that his position with the Department became vacant by operation of law upon his plea of guilty to the crime of insurance fraud in the third degree, which conviction involved a violation of his oath of office, resulting in automatic forfeiture of his employment with the City pursuant to New York City Charter § 1116.   Insofar as pertinent, that section defines an oath-of-office violation as a violation of “any provision of law relating to [the employee's] office or employment,” “any fraud upon the City,” or the conversion of “any of the public property to [the employee's] own use.”   Insurance fraud in the third degree requires a “fraudulent insurance act” leading to a wrongful taking or withholding of property with a value in excess of $3000 (Penal Law § 176.20).   Since these elements do not, standing alone, without factual inquiry, show that petitioner perpetrated a fraud upon the City, violated any law relating to his employment or converted any public property to his own use, his termination pursuant to section 1116 was in violation of lawful procedure and was properly annulled (see Matter of Duffy v. Ward, 81 N.Y.2d 127, 133-136, 596 N.Y.S.2d 746, 612 N.E.2d 1213;  see Johnson v. NYC Dept. of Environmental Protection, 7 A.D.3d 383, 776 N.Y.S.2d 464 [decided simultaneously herewith] ).