Opinion
November 15, 1985
Appeal from the Supreme Court, Jefferson County, Grow, J.
Present — Callahan, J.P., Boomer, Green, O'Donnell and Schnepp, JJ.
Determination unanimously annulled, on the law, without costs, and matter remitted to respondents for a new hearing, in accordance with the following memorandum: Petitioner was terminated from employment in the Watertown Fire Department and his disability benefits were discontinued because he was found guilty of misconduct for refusing to perform light duties (see, General Municipal Law § 207-a). Although respondents were not required to provide petitioner with a bill of particulars, petitioner was entitled to sufficient notice of the charges against him to enable him to adequately prepare a defense (see, Matter of Fitzgerald v Libous, 44 N.Y.2d 660). Here the charges against petitioner were made only in the most general terms and respondents did not specify which, if any, directives or established procedures petitioner allegedly violated. It is well established that "no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged" (Matter of Murray v Murphy, 24 N.Y.2d 150, 157). Since the misconduct for which petitioner was terminated was not specified in the charges against him, the determination must be annulled (see, Matter of Shapiro v Board of Regents, 16 N.Y.2d 783; Matter of Soucy v Board of Educ., 41 A.D.2d 984, appeal dismissed 33 N.Y.2d 653; Matter of Abel v Lomenzo, 25 A.D.2d 104, 106, affd 18 N.Y.2d 619). We remit this matter to respondents for the purpose of holding a new hearing based on specific charges of misconduct.