Opinion
May 6, 1996
Appeal from the Supreme Court, Kings County (Dowd, J.).
Ordered that the judgment is affirmed, with costs to the respondent New York City Civil Service Commission.
Following a hearing pursuant to Civil Service Law § 75 and dismissal from her position with the respondent New York City Transit Authority (hereinafter the NYCTA) on August 1, 1989, the petitioner appealed to the respondent New York City Civil Service Commission (hereinafter the Commission) pursuant to Civil Service Law § 76. On April 4, 1994, the Commission rendered a decision wherein it upheld most of the NYCTA's findings of guilt, but modified the penalty to a "lengthy suspension without pay" for the period covering the date of her dismissal to 60 days after its decision. The petitioner commenced this CPLR article 78 proceeding requesting back pay and asserting that the period of suspension without pay was excessive and contrary to law. The Supreme Court denied the petition and dismissed the proceeding finding that the Commission was without authority to award back pay and that its determination was not contrary to law. We now affirm.
Initially we note that the court incorrectly stated in dicta that the Commission was unauthorized to award back pay ( see, Civil Service Law § 76). Unlike the probationary employee in Matter of Department of Personnel v. New York City Civ. Serv. Commn. ( 79 N.Y.2d 806), the petitioner's employment in the instant case is governed by Civil Service Law § 75. As such, the Commission is expressly authorized by statute to award back pay ( see, Civil Service Law § 76, [3]).
However, the court correctly concluded that the determination of the Commission was not "in violation of the Constitution or of the laws of this State" and that it did not "act * * * illegally, unconstitutionally, or in excess of its jurisdiction" ( Matter of New York City Dept. of Envtl. Protection v. New York City Civ. Serv. Commn., 78 N.Y.2d 318, 323-324), and the determination is therefore beyond judicial review (Civil Service Law § 76). Although the period of the petitioner's suspension without pay in this case was unusually lengthy, there is nothing in the record to suggest that the Commission's modification in this regard was not a proper exercise of its discretion ( see, Civil Service Law § 76).
The petitioner's remaining contentions are without merit. Balletta, J.P., Sullivan, Copertino and Krausman, JJ., concur.