Opinion
EFCV-19-154670
07-30-2019
Steven M. YOUNG, Petitioner/Plaintiff, v. VILLAGE BOARD OF the VILLAGE OF GOUVERNEUR, New York, the Village of Gouverneur, New York, Respondents/Defendants.
Slye Law Offices, P.C. (Robert J. Slye, Jr., Esq., of counsel), attorney for Plaintiff Case & Leader LLP (Henry J. Leader, Esq., of counsel), attorneys for Defendant.
Slye Law Offices, P.C. (Robert J. Slye, Jr., Esq., of counsel), attorney for Plaintiff
Case & Leader LLP (Henry J. Leader, Esq., of counsel), attorneys for Defendant.
Mary M. Farley, J.
On October 2, 2014, Respondents Village Board of the Village of Gouverneur, New York and the Village of Gouverneur, New York (collectively, "Village") determined Plaintiff/Petitioner Steven M. Young ("Young") had violated certain rules, and terminated his employment as a Village Police Officer, a position which he had held since June 7, 1999 ("2014 Termination"). Young then commenced a special proceeding ("2014 Special Proceeding") against the Village, in which the Third Department: (1) sustained the charges against Young; (2) annulled the penalty of termination; and, (3) remitted the matter to the Village for a redetermination his penalty. Matter of Young v. Village of Gouverneur , 145 AD3d 1285 (3d Dep't 2016). Following an extensive exchange of correspondence between counsel, the Village undertook to conduct a second hearing in September, 2018, and, again, terminated Young, effective October 16, 2018 ("2018 Termination").
Young brings this hybrid Article 78/Declaratory Judgment proceeding seeking the following relief: (1) annulment of the 2018 Termination; (2) an Order directing the Village to return Young to his prior duties and position as a Village Police Officer; and, (3) a declaration that Young is entitled to receive from the Village the compensation he would have received had the Village not improperly terminated him on October 2, 2014. Respondent Village cross-petitions for dismissal. For the reasons which follow, the Court: (1) annuls the 2018 Termination; (2) orders the Village to restore Young to the position of Village Police Officer, retroactive to October 2, 2014; (3) declares Young is entitled to receive salary and other compensation he would have received as a Village Police Officer from and after October 2, 2014; and, (4) denies the Village's Cross-Petition. The Court further remits this matter to the Village for determination of the amount of compensation due Young from and after October 2, 2014, and finds a demonstrated need for discovery on this issue.
The Court has considered NYSCEF Doc. Nos. 1-26 in rendering this Decision and Order.
1. 2014 Termination from Employment
On June 7, 1999, Young began employment with the Village as a Police Officer. Verified Petition/Verified Complaint ["Petition"] (Doc. 3) at ¶ 3. Young worked in this position until October 2, 2014, when the Village, following a hearing held pursuant to Civil Service Law § 75, terminated his employment. Id. at ¶¶ 3-4. The Village based this termination on its conclusion that Young had made false statements to the New York State Police. See Matter of Young , 145 AD3d at 1286. Young then brought the 2014 Special Proceeding under New York C.P.L.R. article 78, in which he challenged both the charges upon which the 2014 Termination was based, and the penalty of termination itself. This Court (Demarest, J.S.C.) transferred the 2014 Special Proceeding to the Third Department on the "substantial evidence" issue. See May 12, 2015, Decision and Order (Doc. 4), at 3.
In both Matter of Young and the instant proceeding, the parties have litigated Young's claims under Civil Service Law § 75, rather than Village Law § 8-804, which concerns discipline and charges for Village police officers. See Matter of Young , 145 AD3d at 1288 ; Petition (Doc. 3) at ¶¶ 4, 16, 30, 46; Answer (Doc. 25) at ¶ 2. New York law is clear that "parties to a civil dispute are free to chart their own litigation course and, in so doing, they may stipulate away statutory, and even constitutional rights." Durst v. Grant , 92 AD3d 1195, 1196 (3d Dep't 2012) (internal quotation marks and citations omitted), lv denied , 19 NY3d 810 (2012). Parties to an action or proceeding are " ‘free to chart their own course [and] fashion the basis upon which [their] particular controversy [would] be resolved.’ " Halstead v. Fournia , 160 AD3d 1178, 1180 (3d Dep't 2018) (citation omitted). Accordingly, the Court construes and applies the Civil Service Law, rather than the Village Law, as consistent with the Third Department's 2016 remittal to the Village.
2. Third Department Decision
Following transfer to the Appellate Division, the Third Department, by decision dated December 15, 2016, first sustained the charges that Young had, in fact, "made a false statement under oath to the State Police." 145 AD3d at 1287. The Third Department, however, annulled the penalty of termination of employment, and "remit[ted] the matter to [the Village] for a redetermination of the penalty." Id. at 1288. In support of its remittal, the Third Department specifically took into account Young's personnel record with the Village, which showed that he had not been subject to any other disciplinary actions or warnings during his fourteen (14) years as a Village Police Officer, as well as the fact that Young had "served as a chief engineer and a member of the fire department for several years." Id. Noting that dismissal was the "harshest penalty" available under Civil Service Law § 75 (3), the Third Department reviewed penalties in other determinations for which judicial review was sought and concluded, "based on the totality of the circumstances, that the penalty [of termination] is so disproportionate to the offense as to shock our sense of fairness." Id.
Whether Young's unique role, as a police officer, in testifying at criminal trials, and any effect of the determination that Young had "made a false statement under oath to the State Police" might have on such testimony, was not expressly stated by the Third Department in its decision to remit to the Village to redetermine Young's penalty.
3. Proceedings following Third Department Remittal and 2018 Termination
Following the Third Department's December 2016, remittal, both Young's former and his current counsel ("Slye") as well as counsel for the Village ("Leader") "exchanged a series of fourteen (14) letters between March 10, 2017, and April 16, 2018," all of which concerned the next steps to be taken following the Third Department's ruling. See Petition (Doc. 3) at ¶ 11; Answer (Doc. 25) at ¶ 3. In his March 21, 2018, letter to the Village's counsel [Doc. 6], counsel for Young "agree[d] to the maximum penalty [short of termination]", and "demanded [Young] be restored to active duty immediately." When Slye received no response, he wrote Leader on April 6, 2018, which elicited two reply letters — dated April 10, 2018, and April 16, 2018 — stating: the Village would be "immediately responding" (Doc. 8), and Young's request will be presented "to the entire Village Board" (Doc. 9). During this time, the Village did not take any action to "redetermin[e] the penalty" — as specifically mandated by the Third Department.
On August 28, 2018 [Doc. 10], and again on August 30, 2018 [Doc. 12], Leader wrote to Slye stating the Village "will conduct a disciplinary hearing on September 28, 2018," at which the Village will offer evidence from four (4) Village employees. These letters characterized the September 28, 2018 proceeding as a "hearing" [see Docs. 10 & 12], but did not refer to any "redetermination of the penalty" as directed by the Third Department. In the second such letter [Doc. 12], Leader stated: (1) "testimony will be taken from Police Officer Alexander Daggett, Officer Darren Fairbanks, Police Chief Laurina Greenhill, and Dispatcher Barbara Shampine"; and, (2) "evidence will be offered" including "Facebook posts by Steven Young and his personnel file."
On September 28, 2018 — a proceeding repeatedly described as a "disciplinary hearing" [see Docs. 10, 12, 25 (Answer) at ¶ 28] — the Village presented testimony from Officers Daggett and Fairbanks; Chief Greenhill; and, Dispatcher Shampine. Proof offered by the Village included, among other things, testimony regarding a July 2017, interaction in a Stewart's Shop parking lot, as well as Facebook posts from April through September 2018. Young and his attorney were not present.
At its October 16, 2018, meeting, the Village Board voted to terminate Young from Village employment, "effective immediately." Minutes of Village Board Meeting ("Minutes") (Doc. 15), at pp. 3-4. The Minutes state this termination was "pursuant to the administrative hearing held on September 28, 2018"; "in accordance with the Appellate Division 3rd Department decision dated December 15, 2016"; and, made "after due consideration of the evidence and testimony presented and the failure of Steve Young to appear and or [sic] present any evidence despite being given notification of the same." Id. at pg. 3. By letter dated December 26, 2018 [Doc. 14], Leader informed Slye that the Village Board "voted [ ] on October 16, 2018 to terminate the employment of Officer Steven Young." Petitioner commenced the instant special proceeding on January 25, 2019.
Although not referenced in the present record, the Court notes Young previously commenced a separate, plenary, action against the Village for breach of contract (St. Lawrence County Index No. 153040). By Decision and Order dated December 4, 2018, this Court: (1) dismissed that action because of Young's failure to file a Notice of Claim with the Village Clerk prior to filing suit [see C.P.L.R. § 9802 ]; and, (2) outlined issues which might arise in connection with: (A) a new, plenary action; (B) the 2014 Special Proceeding; and/or, (C) a later-filed special proceeding. This Court may take judicial notice of its own records as well as those of the same court in another action involving the same parties. Lake George Park Commn. v. Salvador , 72 AD3d 1245, 1247 n. * (3d Dep't 2010), lv denied , 15 NY3d 712 (2010), cert denied , 562 U.S. 1272 (2011) ; see Oakes v. Muka , 56 AD3d 1057, 1059 (3d Dep't 2008).
DISCUSSION
Three issues are now before the Court. First, must the 2018 Termination be annulled pursuant to C.P.L.R. § 7803 (3) as being: [1] in violation of lawful procedure; [2] affected by an error of law; [3] arbitrary and capricious; and/or, [4] an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed? Second, because the Court is constrained to answer the first question in the affirmative, the Court next must determine whether Young should be reinstated to employment with the Village as a Police Officer and, if so, the date of such reinstatement. The third issue concerns whether — and to what extent — Young is entitled to receive compensation from the Village from and after the 2014 Termination. The Court addresses these issues in turn.
1. Annulment of 2018 Termination
In determining whether to annul the 2018 Termination, the Third Department's prior decision in Matter of Young , supra , provides the framework for analysis. The Third Department specifically set forth, in order of severity from the least severe to the "harshest", the specific penalties allowed under Civil Service Law § 75 (3). Matter of Young , 145 AD3d at 1288. The Third Department listed these penalties as "including ‘[1] a reprimand, [2] a fine not to exceed one hundred dollars ..., [3] suspension without pay for a period not exceeding two months, [4] demotion in grade and title, or [5] dismissal.’ " Id. (quoting Civil Service Law § 75 [3] ). Having annulled the penalty of termination, the Third Department held it was "so disproportionate to the offense as to shock [the Court's] sense of fairness." Id.
Succinctly, Young and the Village each characterizes the 2018 Termination differently. Young contends that the 2018 Termination from employment: (1) was not consistent with — and, indeed, ran directly contrary to — the Third Department's remittal to redetermine his penalty; and (2) failed to comply with the requirements of Civil Service Law § 75 (2) as to any new disciplinary charges. From this, he asserts the 2018 Termination from Village employment was arbitrary, capricious, contrary to law, and must be annulled.
In contrast, the Village asserts the 2018 Termination fully complied with the Third Department's order of remittal and simply carried out the Third Department's mandate, nothing more, nothing less. The Village further takes the position that it "did not make its [2018] determination on a new set of charges." Answer (Doc. 25) at ¶ 32. Rather, the Village asserts the Third Department "never restricted the parameters of [Young's] penalty", and, thus, it followed the Third Department's mandate "by holding the required hearing and making a judgment based on the totality of the circumstances after hearing witnesses." Id. at ¶¶ 32, 33. Although the September 2018 hearing clearly involved new testimony and proof concerning events taking place subsequent to the 2014 Termination and the Third Department's 2016 decision, the Village takes the position both that Young's 2018 Termination was in all respects proper, and that the Petition should be dismissed. Id.
The Third Department squarely ruled out "the harshest penalty, dismissal" from employment. Thus, the conclusion is inescapable that remittal to the Village required Young be restored to employment, while imposing some other discipline. Stated differently, because all of the lesser penalties under Civil Service Law § 75 (3) call for continued Village employment, the Third Department's remittal necessarily required the Village restore Young to the Village payroll retroactive to October 2, 2014 — the termination date annulled by the Third Department. The Court notes that the Village, by making the 2018 Termination "effective immediately", constitutes an admission by the Village that Young continued his employment as of the 2018 hearing date. Indeed, Leader's December 26, 2018, letter to Slye states the Village "terminate[s] the employment of Officer Steven Young." Doc. 14 (emphasis added). It is axiomatic that an employer — here, the Village — cannot "terminate" an individual who is not then an employee.
The Second Department's decision in Matter of De Martino v. Meehan , 149 AD2d 703 (2d Dep't 1989), is readily distinguished. In that case, a prior Second Department decision had upheld misconduct charges against petitioner, a New York City Transit Police Officer, vacated the penalty of termination, and remitted the matter "solely for a redetermination of the penalty." 149 AD2d at 703-04. The principal basis for this remittal was that respondent had improperly relied upon petitioner's personnel file, without giving him notice that the file "would be considered in setting a penalty". Id. at 704. Upon remittal, respondent again imposed the penalty of termination, this time after petitioner had been given proper notice his personnel file would be considered. The Second Department in Matter of De Martino then upheld the penalty of termination. In the instant case, and unlike in Matter of De Martino , Young's personnel file had been properly considered both by the Village, in initially imposing, and then by the Third Department in annulling, the penalty of termination. Thus, the Second Department's reasoning and result in Matter of De Martino are of no event here.
The Court further concludes that the 2018 Termination — to the extent it sought to terminate Young after October 16, 2018 — must be annulled on two separate grounds. First, if, as the Village argues [Answer (Doc. 25) at ¶¶ 32-33], the 2018 Termination was not based on new charges but was instead a redetermination "based on the totality of the circumstances", it runs directly afoul of the Third Department's mandate. The Third Department's remittal was for the sole purpose of redetermining the penalty based on the same record upon which the charges giving rise to Matter of Young were based. By using the phrase "totality of the circumstances", the Third Department made clear that the penalty redetermination is to be based on the already developed record, not some additional or new record.
The Third Department's remittal did not allow the Village to make use of new proof — particularly proof of events taking place well after both Young's last day of work (October 2, 2014) and the Third Department's decision (December 15, 2016) — in order to support, and thus re-impose the penalty of termination. Had the Third Department intended its remittal to include such a de novo determination, it would have so stated. Cf. Ortiz v. Lesser , 83 AD3d 663, 664 (3d Dep't 2011) (remittal for "de novo determination" before another decision-maker); accord : Wind v. Ravo , 69 AD2d 879 (2d Dep't 1979) (same). Accordingly, because the 2018 Termination necessarily relied upon new proof, the Court concludes it was both "affected by an error of law" and an "abuse of discretion as to the measure or mode of penalty or disciplined imposed" under C.P.L.R. § 7803 (3), and, must, therefore, be annulled.
Even if this Court were to characterize the Third Department's remittal as allowing the Village's use of new evidence to, in effect, bring new disciplinary charges based on post-2014 conduct, and thereby characterize the 2018 Termination as being based on such new charges, doing so does not save the 2018 Termination. The Village's correspondence regarding the September 2018 hearing [Docs. 10 & 12] did no more than name four potential witnesses, and state that evidence, including Facebook posts and Young's personnel file, "will be offered." The Village then presented the following specific, proof at the September 2018 hearing: (1) Young, in his personal vehicle, pulled in front of a police car in July 2017 [Transcript (Doc. 16) at 12-21]; (2) Young violated the Village Police Department's social media policies on eight occasions in 2018 [id. at 21-52]; and (3) Young committed "other [alleged] violations of the Department's ‘code of conduct’ " [id. at 62-65; see Petition (Doc. 3) at ¶ 29].
Such conduct by the Village runs directly afoul of both Civil Service Law § 75 (2) and the mandates of due process. In this regard, Civil Service Law § 75, titled "Removal and other disciplinary action", sets forth a specific procedure with clear procedural safeguards for new disciplinary charges. These include: (1) respondent must receive written notice of removal or disciplinary action and the reasons therefor; and, (2) he must be "furnished with a copy of the charges preferred against him." Civil Service Law § 75 (2). Perforce, the Village's letters are insufficient and fail to constitute reasonably specific, notice of either: (1) any such "new charges", or (2) the proposed reasons for such charges. E.g. , Matter of Young , 145 AD3d at 1287 (charges must be "reasonably specific, in light of all the relevant circumstances, so as to apprise the party who is the subject of the hearing and to allow such party to prepare an adequate defense") (internal quotation marks and citation omitted); accord : Matter of Auxier v. Town of Laurens , 23 AD3d 912, 913 (3d Dep't 2005) (quoted in Matter of Young ); Wolfe v. Kelly , 79 AD3d 406, 410 (1st Dep't 2010) (same), appeal dismissed , 17 NY3d 844 (2011) ; Matter of Capone v. Patchogue-Medford Union Free School Dist. , 38 AD3d 770, 771 (2d Dep't 2007) (same). Significantly, the Court notes that counsel for the Village does not argue that the 2018 Termination, if in any way based on new charges, meets the requirements of due process and Civil Service Law § 75 (2). Accordingly, and to the extent the 2018 Termination may be characterized as based, in whole or in part, upon "new charges", the Court concludes it was both "in violation of lawful procedure" and "arbitrary and capricious" under C.P.L.R. § 7803 (3), and must, therefore, be annulled.
2. Reinstatement or Continuation of Employment
The next issue before the Court is whether — and, if so, when — to reinstate Young to his past employment as a Village Police Officer. As noted above, the Third Department's decision effectively restored Young to the Village's employment — in some capacity — from October 2, 2014 through, at least, the 2018 Termination. Further, this Court has annulled the 2018 Termination as "affected by an error of law," "in violation of lawful procedure," and "arbitrary and capricious," as well as an "abuse of discretion as to the measure or mode of penalty or discipline imposed." As a result, to date, Young remains a Village employee. The question, then, is whether to restore Young to employment as a Police Officer , retroactive to the October 2014 Termination, and continuing, with the attendant salary, retirement benefits, and the like. The Court answers this question in the affirmative.
The Court's analysis starts with C.P.L.R. § 7806. This section provides, in pertinent part:
The judgment may grant the petitioner the relief to which he is entitled, or may dismiss the proceeding either on the merits or with leave to renew. [ ] Any restitution or damages granted to the petitioner must be incidental to the primary relief sought by the petitioner, and must be such as he might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court against the same body or officer in its or his official capacity.
Id. (emphases added).
A primary aspect of the relief Young seeks is restoration to Village employment as a Police Officer. In this regard, the Petition prays that Young "should immediately be restored to his position as a Village Police Officer." Petition (Doc. 3) at ¶¶ 33, 37, 39, & 41. The Petition further asserts such restoration should include, as incidental relief under C.P.L.R. § 7806, "the full amount of his salary or compensation which he would have been entitled [ ] to receive", "inclusive of all amounts of lost overtime, health insurance benefits, and all other contractual benefits," as well as the benefit of "all [required] contributions to the New York Policemen's and Firemen's Retirement System." Id. at ¶¶ 47, 48 & 65.
In Pauk v. Board of Trustees of City Univ. of NY , 68 NY2d 702 (1986), the Court of Appeals stated that where an Article 78 petitioner is entitled to be restored to his former position, he or she may receive lost salary as an item of incidental relief under C.P.L.R. § 7806. 68 NY2d at 704-05. Although Pauk concluded that the res judicata effect of an earlier determination barred the specific claim at issue, it made clear that, had petitioner been restored to the former petition as a tenured professor, lost salary may be awarded. The Court of Appeals stated:
[H]ad he prevailed on appeal in the prior article 78 proceeding, plaintiff could have been awarded the loss of salary he is currently seeking, calculated from the date he was no longer employed [ ] to the date of reinstatement. Under CPLR 7806, the lost salary would have been "incidental to the primary relief sought by petitioner" , i.e., rescission of the letter terminating his employment and an order declaring him to be a tenured member of the [ ] faculty.
Id. (emphases added; citations omitted).
Pauk thus makes plain that when an Article 78 petitioner is restored to his former position, C.P.L.R. § 7806 permits, as incidental relief, recovery of compensation lost as a result of a prior, improper, termination of employment. See also , Parker v. Blauvelt Volunteer Fire Co. , 93 NY2d 343, 348 (1999) (wrongfully discharged civil service employee seeking reinstatement to his position may simultaneously assert a claim for lost salary and financial fringe benefits as directly incidental to primary relief sought).
Although the Court of Appeals in Pauk affirmed the denial of petitioner's claim on the ground that his prior Article 78 proceeding had been dismissed, the instant case is distinguishable. Here, and unlike in Pauk , there was no prior, effective, termination of employment. Indeed, the Third Department in Matter of Young specifically annulled the penalty of termination and remitted Young's claim for determination of the proper penalty, short of termination. This Court's analysis, then, turns to Civil Service Law § 77.
Civil Service Law § 77, titled "Compensation of officers and employees reinstated by court order," provides:
Any officer or employee who is [1] removed from a position in the service of the state or of any civil division thereof in violation of the provisions of this chapter, and who thereafter [2] is restored [3] to such position [4] by order of the supreme court, shall be entitled to receive and shall receive from the state or such civil division, as the case may be, the salary or compensation which he would have been entitled by law to have received in such position but for such unlawful removal , from the date of such unlawful removal to the date of such restoration, less the amount of any unemployment insurance benefits he may have received during such period. Such officer or employee shall be entitled to a court order to enforce the payment of such salary or compensation.
Id. (emphases added).
As now pertinent, individuals, such as Young, seeking recovery of "salary or compensation" to which they would have been entitled to receive absent unlawful removal from employment, must establish four (4) elements: (1) removal from a position of public employment in violation of Civil Service Law § 75 ; and, (2) restoration; (3) "to such position"; (4) "by order of the supreme court." The Court now addresses each element in turn.
Both the Third Department and, by virtue of the September 2018 hearing, this Court have determined Young had been wrongfully removed from his prior employment as a Village Police Officer. The Third Department made this clear by annulling, in partial reliance on Young's departmental file, the "harshest penalty [of] dismissal." 145 AD3d at 1288. By granting this hybrid petition and annulling the 2018 Termination, this Court now has determined that Young was, again, wrongfully terminated from such employment. Thus, the first and second elements of Civil Service Law § 77 — that Young (1) was wrongfully terminated; and (2) is entitled to be restored to the Village payroll — have been satisfied.
The third element under Civil Service Law § 77 addresses whether Young is to be restored to "such position" — his pre-October 2, 2014 position as Village Police Officer. If so, Pauk has made clear that lost salary and other compensation may be recovered as incidental relief under C.P.L.R. § 7806. The question, then, is whether Young is to be restored to this prior employment and job title.
In Matter of Sterling v. Levitt , 168 AD2d 314, 315 (1st Dep't 1990), appeal denied , 77 NY2d 1991), the First Department addressed whether petitioner, who had been improperly disqualified from a position and then later found qualified, was entitled to the remedy of back pay, irrespective of any finding of bad faith. In holding that petitioner was entitled to back pay (in addition to "full benefits, including seniority and sick pay"), the First Department concluded:
All that need be shown is that petitioner's loss of employment was wrongful in that it violated his rights in law or contract. As respondents wrongfully interfered with petitioner's rights under the Civil Service Law, he is entitled to the remedy of back pay. Id. (citations omitted).
See also : Matter of Greiner v. Greene County Dept. of Fire Prevention & Control , 188 AD2d 880, 881 (3d Dep't 1992) (by failing to reinstate petitioner to the first available position pursuant to prior order, respondent public employer "effectively subjected him" to an " ‘unlawful removal’ "; petitioner "therefore entitled to the remedy of back pay from that point until his reinstatement"); Matter of Brayer v. Lapple , 58 AD2d 1020, 1020 (4th Dep't 1977) (unlawfully terminated city employee "entitled to be reinstated to his former position and back pay should be paid to him to the date of reinstatement"), aff'd , 44 NY2d 741 (1978).
The Third Department's December 2016, remittal required the Village, if it was to assess any penalty, to impose any one of the lesser penalties listed in Civil Service § 75 (3), which include "demotion in grade and title." Matter of Young , 145 AD3d at 1288 (quoting Civil Service Law § 75 [3] ). Had the Village restored Young to some employment during the twenty-two (22) months between the Third Department's December 2016 determination and the 2018 Termination, this Court could readily conclude the lesser penalty of "demotion in grade and title" might have been an available penalty, and thus decline to order the Village restore Young to his prior position as Village Police Officer. The Village, however, provides no indication that any position to which Young could have been demoted existed at any time after the 2014 Termination, the Third Department's decision, or, indeed, exists now.
The Village did nothing during the extended period of time after the Third Department's remittal. It did not impose a reprimand; a fine not exceeding one hundred dollars; a suspension without pay for a period not exceeding two months; nor did it demote Young in grade or title. New York Civil Service Law § 75 (3). The Village did not offer to or place him back on the payroll in some (even part-time) position; it did not restore him to his prior grade and title; it did not place him on any reinstatement list; it did not offer to or provide any of the benefits which he had formerly received. The Third Department's remittal required reinstatement to Village employment in some capacity, and carried with it the mandate that the Village act with reasonable promptness in redetermining the penalty. The Village did not do so, and offers no explanation or excuse for its extended inaction as evidenced by the parties' respective counsel's fourteen (14) letters between March 2017 and April 2018.
The record establishes beyond question that the Village, for nearly two (2) years, effectively refused to comply with the Third Department's remittal. Even after its counsel stated in an April 2018 letter [Doc. 8] it would be "immediately responding" to Young's demand for reinstatement, the Village did nothing. As a result of this extended, unexcused inaction, the Court concludes the Village waived the next most severe penalty available under Civil Service § 75 (3) — demotion in grade and title. The lesser remaining penalties thereunder — reprimand; a fine not to exceed one hundred dollars; two month suspension — are fully consistent with employment as a Village Police Officer . Equity requires that a party who is responsible for such delay and inaction — here the Village — must assume the risk of liability for the compensation. Accordingly, the Court here orders Young be reinstated to Village employment as a Police Officer, retroactive to October 2, 2014. The third and fourth elements for relief under Civil Service Law § 77 — a Court order restoring Young to his former position — are thus satisfied.
3. Appropriate Incidental Relief Under C.P.L.R. § 7806
Having (1) determined that Young was improperly terminated as a Village Police Officer; and, (2) ordered that he be restored to that position retroactive to October 2, 2014, the final question before the Court is the appropriate "incidental" relief to which he is entitled. Here, Civil Service Law §§ 75 and 77, again, provide the answer. The Court determines, first, that the strictest penalty still available to the Village under Civil Service Law § 75 — "suspension without pay for a period not exceeding two months" — is appropriate, should the Village chose to impose it. Counsel for Young has informed the Court his client will accept this penalty. Thus, in calculating "the amount salary or compensation which he would have been entitled by law to have received in such position but for such unlawful removal" [ Civil Service Law § 77 ], the Village may suspend Young without pay for "not exceeding two months." Further, Civil Service Law § 77 provides that the amount of compensation due Young must be "less the amount of any unemployment insurance benefit he may have received during such period." Id.
It is not possible for the Court to determine, on the present record, the monetized relief to which Young is now entitled. His Petition claims entitlement to "all back pay and back contractual benefits; all contributions to the New York State Policemen's and Firemen's Retirement System [ ], and all other benefits of employment from October 2, 2014." Petition (Doc. 3) at ¶ 65. Young's 2014 salary is not in the record. The record also lacks any documentary or other proof concerning subsequent pay raises (if any); appropriate retirement contributions; or other benefits of employment.
At oral argument before the Court, Young's counsel asserted, without dispute, discovery is necessary to determine the appropriate penalty. This discovery may include records and testimony concerning whether (or how much) Young received in unemployment compensation; the correct amounts for any wages, including raises, expected overtime, and/or longevity payments, as well as earnings records of other, similarly situated, Village Police Officers. Young's deposition, as well as the deposition testimony of the Village's bookkeeper or other Village employees, may be useful in determining the proper penalty.
In a special proceeding such as this, disclosure requires leave of court. C.P.L.R. § 408. Although not available as a matter of course, discovery is proper in a combined article 78 and declaratory judgment proceeding where there is "demonstrated need." Matter of Lally v. Johnson City Cent. Sch. Dist. , 105 AD3d 1129, 1132 (3d Dep't 2013), see also Matter of Town of Pleasant Val. v. New York State Bd. of Real Prop. Servs. , 253 AD2d 8, 15-16 (2d Dep't 1999) (same). In Matter of D'Alessandro v. Nigro , 59 Misc 3d 748, 752-53 (Sup Ct Kings County 2018), the Supreme Court found "demonstrated need" for limited discovery in petitioner firefighter's article 78 proceeding for disability retirement benefits. In so ruling, the court in Matter of D'Alessandro noted respondents "have not claimed, much less demonstrated, that providing the requested discovery would be prejudicial or unduly burdensome, would violate confidentiality, or would unduly delay the case." 59 Misc 3d at 753. Like respondent in Matter of D'Alessandro , the Village here has not objected to discovery or argued why it might be prejudicial, burdensome, or result in delay.
The Court finds a demonstrated need for discovery as to the appropriate compensation due Young, and therefore allows the same. Whether, following discovery, the parties are able to agree on the appropriate compensation, or whether further proceedings, either before the Village Board or this Court, are necessary to determine the correct, non-speculative amount of compensation owed Young, must await another day. See Matter of Johnson v. New York City Dept. of Envtl. Protection , 34 AD3d 241, 242 (1st Dep't 2006) (affirming denial of motion to vacate back pay owed city employee "due to lost overtime and weekend premiums to the extent that those amounts can be documented"), aff'd , 10 NY3d 41 (2008) ; cf. Hancock v. City of New York , 272 AD2d 80, 80-81 (1st Dep't 2000) (remanding for calculation of back pay excluding speculative amounts).
CONCLUSION
The Court grants the Petition, denies Respondents' Cross-Petition, and annuls the 2018 Termination. The Court further determines that Petitioner Young is entitled to be restored to his former position of Village Police Officer retroactive October 2, 2014, and the same is SO ORDERED. The Court declares that Petitioner is entitled to receive the salary or compensation which he would have been entitled by law in such position, less: (1) lost pay for a period not to exceed two months [ Civil Service Law § 75 (3) ]; and, (2) any unemployment insurance benefits he may have received during such period [ Civil Service Law § 77 ]. The Court finds a demonstrated need for discovery concerning the salary and/or compensation due Young, and remits this matter to the Village for further proceedings not inconsistent with this Decision and Order.