Nagin v. Zurmuhlen , 173 N.Y.S.2d 899 ( 1958 )

Order, annulling determination which removed petitioner from his position as assistant civil engineer in the Department of Public Works, modified, on the law, to reinstate the determination that petitioner was guilty of the charges as filed, to vacate the direction that petitioner be reinstated and the conditions imposed thereon, and, in the exercise of discretion, to remand the proceeding to respondent Commissioner of Public Works solely to reconsider and fix a more appropriate punishment, following which and subject to such fixing of punishment, respondent Board of Estimate is directed to consider and act upon petitioner’s application for service retirement allowance filed on May 19, 1955, and, as so modified, the order is in all other respects affirmed, without costs to either party. The findings of fact and guilt contained in the administrative determination are confirmed. In the light, however, of petitioner’s long civil service and the extenuating circumstance of his serious illness requiring surgical procedures at the time he defaulted in completing the examination initiated by the Commissioner of Investigation under the Security Risk Law (L. 1951, ch. 233, as amd. by L. 1953, ch. 26, § 1, and L. 1954, ch. 105, § 1), the punishment of dismissal imposed by respondent Commissioner of Public Works was harsh and unwarranted and, as such, an abuse of discretion (Civ. Prac. Act, § 1296, subd. 5-a; Matter of Nimelman v. Kross, 5 A D 2d 984). Settle order. Concur — Botein, P. J., Breitel, Rabin, McNally and Bergan, JJ.