Carroll v. County of Putnam

—In a proceeding pursuant to CPLR article 78 to review a determination of the Putnam County Department of Highways & Facilities, dated August 28, 1998, which, after a hearing, found that the petitioner was not physically or mentally fit to perform his [444] duties and placed him on an involuntary leave of absence, the petitioner appeals from so much of an order and judgment (one paper) of the Supreme Court, Putnam County (Braatz, J.), dated February 3, 1999, as granted that branch of the respondent’s motion which was to dismiss the fifth cause of action based on Executive Law § 296 for failure to file a timely notice of claim and, thereafter, by order dated April 14, 1999, transferred the matter to this Court to decide whether the determination was supported by substantial evidence. Ordered that the appeal is dismissed, without costs or disbursements, and the order and judgment is vacated, on the law; and it is fiirther, Adjudged that the determination is confirmed, and the proceeding is dismissed on the merits, without costs or disbursements. Since the petition raises a substantial evidence question, and the remaining point raised by the petitioner and disposed of by the Supreme Court is not an objection that could have terminated the proceeding within the meaning of CPLR 7804 (g), the Supreme Court should have transferred the entire proceeding to the Appellate Division (see, Matter of Duso v Kralik, 216 AD2d 297; Matter of Reape v Gunn, 154 AD2d 682). Nonetheless, since the record is now before us, this Court will treat the proceeding as if it had been properly transferred here in its entirety (see, Matter of Duso v Kralik, supra; Matter of Reape v Gunn, supra). Contrary to the petitioner’s contentions, the determination of the Putnam County Department of Highways & Facilities, made after a hearing, to place the petitioner on an involuntary leave of absence was supported by substantial evidence (see, Matter of Lahey v Kelly, 71 NY2d 135; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Glinka v Town of Poughkeepsie, 209 AD2d 773; Matter of Romano v Town Bd., 200 AD2d 934). The petitioner’s remaining contentions are without merit. Ritter, J. P., S. Miller, McGinity and Feuerstein, JJ., concur.