TEAMSTER LOCAL UNION 182 VOHID v. UPPER MOHAWK VALLEY REGIONAL WATER BOARD

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

Matter of TEAMSTER LOCAL UNION # 182, on Behalf of Abdul VOHID, and Abdul Vohid, Petitioners-Respondents, v. UPPER MOHAWK VALLEY REGIONAL WATER BOARD, Respondent-Appellant.  (Appeal No. 1.)

Decided: March 31, 1999

PRESENT:  DENMAN, P.J., GREEN, PINE, LAWTON and HURLBUTT, JJ. Frederick W. Murad, Murad and Murad, Utica, for petitioners-respondents. Edward D. Earl, Felt, Evans, Panzone, Borrow & Hallak, LLP, Clinton, for respondent-appellant.

Respondent instituted a disciplinary proceeding against its employee, petitioner Abdul Vohid, based upon charges of misconduct.   Following a hearing on the charges, respondent terminated Vohid's employment.   Petitioners commenced this CPLR article 78 proceeding challenging the determination on the ground that, because the Hearing Officer who presided at the hearing was not designated in writing (see, Civil Service Law § 75[2] ), respondent lacked jurisdiction to maintain the disciplinary proceeding or impose sanctions against Vohid.

 Supreme Court properly granted the petition.  “In the absence of a written delegation authorizing a deputy or other person to conduct the hearing, the removing board or officer has no jurisdiction to discipline an employee” (Matter of Wiggins v. Board of Educ., 60 N.Y.2d 385, 387, 469 N.Y.S.2d 652, 457 N.E.2d 758;  see, Matter of Perez v. New York State Dept. of Labor, 244 A.D.2d 844, 665 N.Y.S.2d 714;  Matter of Blount v. Forbes, 250 App.Div. 15, 17-18, 293 N.Y.S. 319).   The letter notifying Vohid of the charges and the name of the Hearing Officer does not satisfy the statutory requirement of a written delegation of authority (cf., Matter of Perez v. New York State Dept. of Labor, supra, at 844-845, 665 N.Y.S.2d 714;  Matter of Salley v. Hempstead School Dist., 121 A.D.2d 547, 548, 504 N.Y.S.2d 30).

 Following entry of the judgment granting the petition, respondent moved for renewal or reargument based upon its belated discovery of the letter of designation in Vohid's personnel file.   Although the court erroneously determined that the motion should be treated as one for reargument rather than renewal (see, Foley v. Roche, 68 A.D.2d 558, 567-568, 418 N.Y.S.2d 588), it properly denied the motion on the ground that respondent offered no valid excuse for failing to submit the letter when its jurisdiction was originally challenged (see, Matter of Dyer v. Planning Bd., 251 A.D.2d 907, 674 N.Y.S.2d 860, appeal dismissed 92 N.Y.2d 1026, 684 N.Y.S.2d 490, 707 N.E.2d 445;  Matter of Hurley v. Avon Cent. School Dist., 187 A.D.2d 983, 591 N.Y.S.2d 820;  Foley v. Roche, supra, at 568, 418 N.Y.S.2d 588).

Those portions of respondent's proposed record on appeal that were directed to be deleted in the order settling the record have been included in the stipulated record on appeal.   As a result, no controversy remains with respect to the order settling the record and the appeal from that order is therefore dismissed as moot (see, Dworsky v. Murphy, 98 A.D.2d 917, 470 N.Y.S.2d 910;  Nassau Trust Co. v. Filderman, 52 A.D.2d 588, 382 N.Y.S.2d 121).

Judgment unanimously affirmed with costs.

MEMORANDUM: