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Matter of Cooke v. City of Long Beach

Appellate Division of the Supreme Court of New York, Second Department
Feb 17, 1998
247 A.D.2d 538 (N.Y. App. Div. 1998)

Opinion

February 17, 1998

Appeal from the Supreme Court, Nassau County (McCarty, J.).


Ordered that the judgment is reversed, on the law, with costs, the petition is granted, and the petitioner is restored to her position as a bus driver for the City of Long Beach, with the salary and other benefits which have attached to that position from June 30, 1996, to the date of restoration, minus any workers' compensation benefits she received during that period.

The respondent contends that the petitioner's argument that she did not receive timely notice of her impending termination from employment pursuant to Civil Service Law § 71 should not be considered because it is being raised for the first time on appeal. We disagree. The petitioner's brief does not allege any new facts, but merely raises a legal argument which could not have been avoided by the respondent if it had been raised in the Supreme Court. Thus, this argument raised by the petitioner may be considered for the first time on appeal ( see, Block v. Magee, 146 A.D.2d 730, 732-733).

The respondent failed to serve notice to the petitioner of the impending termination of her employment at least 30 days prior thereto pursuant to 4 NYCRR 5.9 (c) (2). Since the respondent's notice did not comply with that regulation or the requirements of due process ( see, Matter of Prue v. Hunt, 78 N.Y.2d 364; Matter of La Joie v. County of Niagara, 239 A.D.2d 908), the petitioner should be restored to her prior position.

Mangano, P.J., Miller, Pizzuto and Krausman, JJ., concur.


Summaries of

Matter of Cooke v. City of Long Beach

Appellate Division of the Supreme Court of New York, Second Department
Feb 17, 1998
247 A.D.2d 538 (N.Y. App. Div. 1998)
Case details for

Matter of Cooke v. City of Long Beach

Case Details

Full title:In the Matter of CHERYL COOKE, Appellant, v. CITY OF LONG BEACH, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 17, 1998

Citations

247 A.D.2d 538 (N.Y. App. Div. 1998)
669 N.Y.S.2d 312

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