CANNA v. TOWN OF AMHERST

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

Matter of Anthony R. CANNA, Petitioner-Respondent, v. TOWN OF AMHERST, Town Board of Town of Amherst, Susan Grelick, Town Supervisor, and Susan K. Jaros, Town Clerk, Respondents-Appellants.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., GREEN, KEHOE, GORSKI, AND SMITH, JJ. Bartlo, Hettler & Weiss, Kenmore (Paul D. Weiss of Counsel), for Respondents-Appellants. Law Office of William E. Grande, Kenmore (William E. Grande of Counsel), for Petitioner-Respondent.

Respondents contend in this CPLR article 78 proceeding that Supreme Court erred in directing them to reimburse petitioner for the cost of obtaining a transcript of a hearing conducted pursuant to Civil Service Law § 75.   It is undisputed that respondents obtained a copy of that transcript before the issuance of a determination resolving the charges against petitioner and that they provided a copy thereof to the Hearing Officer.   It also is undisputed that respondents refused to provide petitioner with a copy of the transcript at that time, and petitioner was required to pay for a copy of the transcript in order to obtain one.   Respondents contend that they were required to provide petitioner with a copy of the transcript free of charge only after the issuance of the determination resolving the charges and, then, only in the event that petitioner was found guilty of at least one of the charges against him.   Respondents contend that they provided petitioner with a copy of the transcript free of charge at that time and thus the court erred in requiring them to reimburse petitioner for the cost of obtaining the transcript before the issuance of the determination.   We reject that contention.

 Civil Service Law § 75(3) provides in relevant part that “[a] copy of the transcript of the hearing shall, upon request of the officer or employee affected, be furnished to him [or her] without charge.”   The prior version of the statute, Civil Service Law former § 22(2), provided in relevant part that, “[i]f such officer or employee is found guilty, a copy of the charges preferred and the answer thereto, the determination and a transcript of the hearing shall be forthwith entered upon the records of the department or office in which he [or she] was employed, ․ and a copy of the determination and of the transcript of the hearing [shall be] furnished to such officer and employee.”   The prior version of the statute thus provided that a copy of the transcript of the hearing was to be furnished upon a finding of guilt, while the statute as amended removed that limitation.  “In construing the statute, we are justified in assuming that it was intended by the Legislature to change the law then existing” (Lichtenstein v. Grossman Constr. Corp., 221 A.D. 527, 530, 225 N.Y.S. 118;  see McKinney's Cons. Laws of N.Y., Book 1, Statutes § 193[a];  Matter of Stein, 131 A.D.2d 68, 71-72, 520 N.Y.S.2d 157, lv. dismissed 72 N.Y.2d 840, 530 N.Y.S.2d 555, 526 N.E.2d 46).

Finally, we note that respondents are not required pursuant to Civil Service Law § 75(3) to obtain and provide a daily or weekly copy of the transcript of a hearing as it progresses.   Here, however, the hearing had been completed when petitioner requested a copy of the transcript and respondents refused to provide him with a copy at that time.   The court thus properly directed respondents to reimburse petitioner for the cost of obtaining the transcript.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: