
    In the Matter of Nicholas F. Penebre, Petitioner, v Joseph F. Dzaluk et al., Constituting the Board of Trustees of the Village of Port Chester, et al., Respondents.
   Proceeding pursuant to CPLR article 78 inter alia to review a determination of the respondent board of trustees, dated April 18, 1975 and made after a hearing, which dismissed petitioner from his position as police officer. Determination annulled, on the law, without costs, and respondents are directed to restore petitioner to his position, with accrued salary and benefits, as of December 12, 1974, on which date he was suspended from duty without pay, less interim earnings, but without prejudice to the right of respondents to take such action pursuant to sections 72 and 73 of the Civil Service Law as they may be advised. The record establishes that for some 13 years petitioner was an exenlplary police officer; that within the six months preceding the making of the subject disciplinary charges his behavior altered markedly; and that he became depressed and inattentive (one witness testified to an incident—not one of the specified charges—in which his behavior was clearly aberrant). Disciplinary charges for incompetence or misconduct pursuant to section 75 of the Civil Service Law seem misplaced in these circumstances. As the village prosecutor indicated at the close of the disciplinary hearing, the evidence adduced warranted proceedings under sections 72 and 73 of the Civil Service Law (cf. Matter of Brockman v Skidmore, 43 AD2d 572). Gulotta, P. J., Latham, Margett, Damiani and Christ, JJ., concur.  