Holmes v. Simpson

— Proceeding pursuant to CPLR article 78 to review a determination of the New York City Transit Authority, dated October 1, 1981, which, after a hearing, found petitioner guilty of certain misconduct and dismissed him from his position as a collecting agent. Petition granted, on the law, without costs or disbursements, determination annulled and the petitioner is restored to duty with full back pay less any compensation which he may have earned in any other employment and any unemployment insurance benefits he may have received. Petitioner has been employed for 21 years by the Transit Authority. The record indicates that the incident complained of occurred during a tour of duty that started at 9:50 p.m. on February 15,1980, and ended at 5:50 a.m. on February 16, 1980. Petitioner was one of four employees working on a revenue train. Their job was to stop at each station and pick up the revenue accumulated at the subway token booths during the day. Two of the men, a key man and a sheet man, leave the train and go to the token booth. The key man opens the safe in the booth and removes the bags of money. He calls out the number of bags to the sheet man who has picked up the sheet at the booth. The sheet man checks the number of bags listed on the sheet with the number called out by 503 the key man. These two men then board the train and place the bags on a metal container referred to as a “can”. A third man, the assistant tally clerk, then counts the number of bags and calls that number out. The fourth member of the group, the tally clerk, now has the sheet and he checks the number called out by the assistant tally clerk, to be sure the numbers match. The bags of money are then placed inside the can which is locked. The cans are removed at the end of the run at Transit Authority headquarters at Jay Street, in Brooklyn. On the night in question the petitioner was the assistant tally clerk. When the train reached the Canal Street station, the procedure described above was followed. Nothing unusual occurred at that time and it was not until the train reached Jay Street that the group discovered that they were short one bag. All four employees testified at the disciplinary hearing that no one noticed anything unusual until the train reached Jay Street. Just how it was discovered that a bag was missing was never clearly explained. The tally clerk testified that “[b]y us counting the can, transferring the can into another can, we discovered that a bag was short”. The same employee testified that the can was sealed as the train proceeded toward Jay Street. By the same token, it was never explained how the parties determined that one particular bag was missing and that it came from the Canal Street station. Petitioner’s coemployees testified very forthrightly that they had no independent recollection of the events of that night other than the testimony of the tally clerk that, from the time the train left the Canal Street station until the shortage was discovered, the petitioner never left the train. Yet the bag was never found. The only piece of real evidence against petitioner is the tally sheet. The sheet indicated that five bags were taken from the station whereas petitioner claims it was four. The other three employees clearly and openly relied on the tally sheet in testifying, yet it is far from being a reliable piece of evidence. The missing bag is the first one listed on the sheet, which indicates that it was deposited in the booth’s safe at 11:00 p.m. on February 14,1980. Supposedly it was picked up by petitioner’s crew at 11:38 p.m. on February 15,1980, more than 24 hours later. The tally sheet for the previous night was not produced nor was any explanation given as to why that bag was not picked up on the previous night. The entry for the missing bag also shows that it contained $263 and 150 tokens, yet counsel for the Transit Authority inexplicably amended the charge against petitioner to claim that the missing bag contained $338 in currency and no tokens. Finally we note that the sheet man testified that he routinely signed the tally sheet before getting the count. All things considered, the sheet is a mighty thin reed upon which to base a decision to destroy a man’s career. Without the tally sheet, there is nothing. The law is well settled that in order for a hearing officer to make a finding of guilt, there must be substantial evidence to sustain the charge, or charges, and, for a reviewing court to confirm the findings, it must, of course, also determine that they were based on substantial evidence. On this issue, the Court of Appeals, in the case of 300 Gramatan Ave. Assoc, v State Div. of Human Rights (45 NY2d 176, 181-182), had this to say: “A court reviewing the substantiality of the evidence upon which an administrative agency has acted exercised a genuine judicial function and does not confirm a determination simply because it was made by such an agency (Matter of McCormack v National City Bank, 303 NY 5, 8-9). In final analysis, substantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably — probatively and logically (cf. Matter ofDi Nardo v Monaghan, 282 App Div 5, 7, supra; Matter of Thomas v Codd, 51 AD2d 418, 420; Matter ofPhinn v Kross, 8 AD2d 132, 137; 24 Carmody-Wait 2d, Proceeding Against Body or Officer, § 145:350). Put a bit differently, ‘the 504 reviewing court should review the whole record to determine whether there is a rational basis in it for the findings of fact supporting the agency’s decision’ (McCormick Evidence [2d ed], § 352, p 847; see Matter of Pell v Board ofEduc., 34 NY2d 222, 231; Siegel, New York Practice [1978], § 560, p 783).” Based on the entire record in the instant case, there is a lack of substantial evidence to sustain the determination. In view of the foregoing, we do not reach the question of the severity of the penalty imposed. We would note, however, that it appears to have been based on the final warning in petitioner’s record rather than the evidence and we further note that the tally clerk, who himself testified that he would be equally responsible with petitioner, was suspended for one day. Gulotta, Weinstein and Rubin, JJ., concur.