Opinion
December 29, 1975
In a proceeding pursuant to CPLR article 78 to compel appellants to pay the salary of petitioner, a tenured civil servant who was suspended without pay on stated charges, for the period following the expiration of 30 days from the commencement of the initial suspension until the final determination of the administrative charges against him, the appeal is from a judgment of the Supreme Court, Nassau County, dated July 22, 1975, which granted the application. Judgment affirmed, with costs, upon the opinion of the late Mr. Justice Liff at Special Term. Hopkins, Acting P.J., Brennan and Munder, JJ., concur; Martuscello and Cohalan, JJ., dissent and vote to reverse the judgment and dismiss the petition, with the following memorandum: It is uncontroverted that appellants did not afford petitioner a hearing on the charges against him within 30 days from May 12, 1975, the date upon which he was suspended without pay pursuant to section 75 Civ. Serv. of the Civil Service Law. At the close of the 30-day period appellants ended the suspension and directed petitioner to report for work, but he refused to do so. Petitioner was then indefinitely suspended without pay until such time as he reported for work. In our opinion, petitioner may not refuse to perform any services yet nevertheless demand that appellants pay him his salary (see 23 Opns St Comp 67-851, pp 756-758).