Police Benevolent Ass'n of the New York State Troopers, Inc. v. Vacco

White, J. Appeal from a judgment of the Supreme Court (Cobb, J.), entered December 12, 1997 in Albany County, which granted petitioners’ application, in a proceeding pursuant to CPLR article 78, to annul respondent’s determination denying petitioners’ request for reimbursement for the cost of a criminal defense. Petitioner Robert C. Gregory, a State Trooper, was indicted on March 23, 1995 by a Westchester County Grand Jury for the crimes of tampering with public records in the first degree, offering a false instrument for filing in the first degree, tampering with physical evidence and official misconduct, all stemming from his investigation of a hit and run accident that occurred on April 3, 1993 in the Town of Cortlandt, Westchester County. Gregory was arraigned on April 7, 1995 and, pursuant to Public Officers Law § 19 (2) (b), delivered a letter on April 18, 1995 to respondent applying for reimbursement for reasonable counsel fees and litigation costs incurred in the defense of the charges against him. Following the dismissal of the criminal charges on August 21, 1996, petitioners1 renewed the aforementioned application. Respondent denied it on the grounds that (1) the charges of tampering with physical evi [921] dence and official misconduct did not arise out of an act which occurred within the scope of Gregorys public employment and duties (see, Public Officers Law § 19 [2] [a]), and (2) Gregory did not request reimbursement within 10 days of his arraignment as required by Public Officers Law.§ 19 (3). Supreme Court’s annulment of that determination in this CPLR article 78 proceeding prompted this appeal by respondent. It is well established that judicial review of an administrative determination is limited to the grounds presented by the agency at the time of its determination and, if these grounds are improper or inadequate, we may not confirm the administrative action by substituting what we consider to be a more adequate or proper basis (see, Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662, 678; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758). Respondent recognizes that the application of this rule would require an affirmance since his determination cannot be sustained in the absence of a finding that all of the charges against Gregory arose from acts committed outside the scope of his public employment or duties (see, Frontier Ins. Co. v State of New York, 87 NY2d 864, 867; Matter of LoRusso v New York State Off. of Ct. Admin., 229 AD2d 995 [construing Public Officers Law § 17 (2) (a), a companion statute of Public Officers Law § 19 (2) (a)]). To avoid a final judgment on the merits, respondent requests that we remit this matter to permit him to issue a new determination that encompasses all of the charges levied against Gregory. We unquestionably have the right under CPLR 7806 to remit a matter to an administrative agency when further agency action is necessary to cure deficiencies in the record, such as when an agency fails to make appropriate findings (see, Matter of Deutsch v Catherwood, 31 NY2d 487, 491) or applies an improper standard of proof (see, Matter of Lee TT. v Dowling, 87 NY2d 699, 707; see also, 6A NY Jur 2d, Article 78, § 361, at 97-100). Where, as here, the record is complete enough to enable the Court to render a final judgment on the merits, remittal is not appropriate, especially where the agency is merely seeking a second chance to reach a different determination on the merits (see, Matter of Hartje v Coughlin, 70 NY2d 866, 868). Accordingly, we decline respondent’s request. Turning to respondent’s timeliness argument, predicated upon the notice provision of Public Officers Law § 19 (3), we have held that similar provisions contained in Public Officers Law § 17 (4) and § 18 (5) are not to be construed as a condition precedent to suit (see, Frontier Ins. Co. v State of New York, [922] 239 AD2d 92, 94; Matter of Hunt v Hamilton County, 235 AD2d 758). We discern no reason for treating the notice provision of Public Officers Law § 19 (3) differently and, thus, petitioners’ failure to comply with its requirements is not a bar to this proceeding. In any event, their one-day delay clearly had no impact upon respondent’s ability to fulfill the statutory obligations imposed upon him by Public Officers Law § 19 (2) (b). Therefore, since respondent’s denial of petitioners’ application lacked a rational basis, we affirm Supreme Court’s judgment (see, Pell v Board of Educ., 34 NY2d 222, 231). Cardona, P. J., Carpinello and Graffeo, JJ., concur. Footnotes [1] Petitioner Police Benevolent Association of the New York State Troopers, Inc. joined in the application because it paid a portion of the fees and costs incurred by Gregory in his defense.