Sullivan v. Wallace , 249 N.Y.S.2d 1005 ( 1964 )

Determination unanimously annulled on the law and on the facts insofar as it relates to Specification No. 1, and the proceeding remanded for further consideration and determination, and the determination otherwise confirmed, without costs. A charge of misconduct and ineompeteney consisting of two specifications were served upon petitioner May 10, 1963. Specification No. 2 charging that petitioner had failed to appear January 30, 1963 for an examination, as ordered, is supported by the evidence, and the finding thereon will not be disturbed. Specification No. 1 alleges “That continuously and uninterruptedly from the third day of September 1958 to date you have not performed the duties incumbent upon a Probation Officer for the City of New York by reason of mental incapacity.” While that specification lacks definiteness and specificity, the objection thereto is more fundamental. Petitioner is charged with failure to perform when he was not afforded an opportunity to perform. In the early part of the period embraced in the specification petitioner was assigned to limited duties of handling the calendar in Part III of the then Court of Special Sessions. Subsequently he was assigned as a receptionist-clerk to one of the Manhattan offices of the court. The record suggests a possible inability to perform but does not contain substantial evidence in support of a charge of failure to do so. In light of the sensitive nature and character of the duties of a probation officer and because of certain questions raised by a reading of the record and our determination as to Specification No. 1, we conclude the matter should be remanded. Respondent is thereby afforded the opportunity of formulating the specification more precisely should it desire to do so, and of giving further consideration to what discipline or penalty is to be imposed. Concur — Breitel, J. P., Rabin, Valente, McNally and Stevens, JJ.