Matteson v. City of Oswego

— Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent Mayor for further proceedings in accordance with the following Memorandum: In this CPLR article 78 proceeding transferred to our Court pursuant to CPLR 7804 (g), petitioner seeks to annul respondent Mayor’s determination that he was guilty of misconduct while employed by the City of Oswego as Marine Maintenance Supervisor. Petitioner also contends that the penalty imposed was arbitrary, capricious and an abuse of discretion. Upon our review of the record, we conclude that there is substantial evidence to support respondent’s determination 1018 that petitioner was guilty of misconduct as charged (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). The penalty imposed, however, was contrary to law. Respondent imposed multiple penalties, to wit: (1) 30 days’ suspension without pay; (2) restitution in the amount of $3,699.48; and (3) demotion to laborer within the Department of Public Works. The imposition of multiple penalties was improper (see, Civil Service Law § 75 [3]). That statute provides for a choice of penalties, thus prohibiting the imposition of a penalty in addition to the suspension without pay (Matter of Sinnott v Finnerty, 113 AD2d 836, 837; Matter of Brabham v Weinstein, 89 AD2d 566). Therefore, we grant the petition to the extent that the determination is modified by vacating therefrom the penalties imposed, and remit the matter to respondent Mayor for the purpose of imposing an appropriate penalty. (Article 78 Proceeding Transferred by Order of Supreme Court, Oswego County, Hayes, J.) Present — Callahan, J. P., Green, Pine, Boehm and Doerr, JJ.