A hearing officer, following a disciplinary hearing conducted pursuant to §75 of the Civil Service Law, found the Petitioner guilty of misconduct and insubordination. The appointing authority [Employer] adopted, in part and rejected in part, the findings and recommendation of the hearing officer and (1) demoted Petitioner from his then higher salary grade position to a position in a lower salary grade and (2) suspended Petitioner without pay for 60 days.*
In this CPLR Article 78 action Petitioner appealed the Employer's decision. Supreme Court, however, granted the Employer's motion pursuant to CPLR §§3211(a) and 7804(f) to dismiss Petitioner's appeal, dismissing the proceeding on the ground that the Petitioner failed to exhaust his administrative remedies. Petitioner appealed the Supreme Court's ruling.
The Appellate Division affirmed the Supreme Court's decision "insofar as appealed from, with costs." The Appellate Division observed that the only argument raised by the Petitioner in opposition to the Employer's motion to dismiss the petition before the Supreme Court was that the Employer's motion was untimely, an argument that was not raised on appeal.
Citing Matter of Castillo v Town of Oyster Bay, 70 AD3d 939, the Appellate Division affirmed the Supreme Court's order and judgment "insofar as appealed from", explaining that "[because] the contentions raised by the [Petitioner] on appeal concerning the exhaustion of administrative remedies do not present pure questions of law appearing on the face of the record that could not have been avoided if raised at the proper juncture, they are improperly raised for the first time on appeal and are not properly before [the Appellate Division]" on appeal.
* A collective bargaining agreement may authorize the imposition of multiple disciplinary penalties in a disciplinary action. In contrast, in disciplinary actions pursuant to §75 of the New York State Civil Service Law the courts have held that "the imposition of multiple penalties was improper" as Civil Service Law §75.3 provides for a choice of penalties, thus prohibiting the imposition of more than one of the discrete penalties set out in the statute [see Matteson v City of Oswego, 186 AD2d 1017]. Imposing multiple penalties in a §75 disciplinary action, however, is possible where there are multiple offenses involved and the individual is found guilty of more than one of the charges alleged [see Wilson v Sartori, 70 AD2d 959].
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