Ram v. Sak

Proceeding pursuant to CPLR article 78 to review a determination of the respondent, dated November 12, 1985, which, after a hearing, found the petitioner guilty of misconduct and dismissed him from his position as a town investigator.

Adjudged that the petition is granted, without costs or disbursements, to the extent of vacating the penalty imposed, and the proceeding is otherwise dismissed on the merits, and the matter is remitted to the respondent for the imposition of a new penalty which shall not exceed suspension for two months without pay, and for a calculation of an award of back pay to the petitioner consisting of the salary he would have earned had he not been dismissed, less the amount of compensation which he may have earned in any other employment or occupation, and any unemployment benefits he may have received during such period.

There is substantial evidence in the record to support the respondent’s determination that on one occasion the petitioner misused his position as town investigator in order to avoid paying a $10 boat ramp usage charge at the Port Jefferson Marina by falsely representing that he was on official town business (see, Matter of Pell v Board of Educ., 34 NY2d 222). We have, however, found the penalty of dismissal excessive to the extent indicated. Brown, J. P., Eiber, Kunzeman and Sullivan, JJ., concur.