
    Irving Gerber, Appellant, v New York City Housing Authority, Respondent.
    Argued May 6, 1977;
    decided July 5, 1977
    
      Morris Weissberg and Robert J. Krengel for appellant.
    
      
      Raphael Samuel and Abram Rothfeld for respondent.
   Cooke, J.

This case involves a claim for unpaid salary by a former public employee for the period running from his suspension from his position with the housing authority until his dismissal on the grounds of misconduct.

On May 2, 1972, the housing authority suspended plaintiff from his position as senior demolition inspector pending determination of bribery charges preferred against him. A hearing on these charges was scheduled for June 21, 1972, but the hearing did not take place on that date because of the inability of the housing authority to effect personal service of the charges on plaintiff. The housing authority utilized New York City policemen who made repeated unsuccessful attempts to serve plaintiff who was either not at home or not responding to their efforts to effect service. Eventually plaintiff was served, a hearing was held, and he was dismissed on September 2, 1975.

It is noted that by the time plaintiff was dismissed for misconduct in September, 1975, based on the same misconduct, he had also pleaded guilty in New York County to a charge of official misconduct and was convicted in Kings County, after a jury trial, of the crime of receiving unlawful gratuities. The issue presented here does not, however, involve plaintiff’s guilt or innocence of the charges, but only whether he is entitled to be paid for the period of his suspension until his ultimate dismissal—a period of some three years and four months.

Special Term granted the housing authority’s motion to dismiss pursuant to CPLR 3211 (subd [a], pars 5, 7), commenting that plaintiff’s claim is "factually and legally improper and invalid.” The Appellate Division affirmed, with two Judges dissenting. The majority was of the view that the inordinate delay in holding the disciplinary hearing was caused by plaintiff, that it would be most unfair to compel the housing authority to pay him substantial sums of money by way of claimed accrued salary without having received services in return, and that he should not be permitted to profit by his proven misconduct and his tactics in successfully delaying the disciplinary proceeding resulting in his discharge. The dissenters took the position that a plenary hearing was necessary to determine whether the delay in holding the hearing was occasioned by plaintiff and whether he was entitled to recover any portion of his salary during the period of his suspension. We agree with the majority, thóugh for somewhat different reasons, and accordingly approve the determination dismissing the complaint.

Pending a hearing and determination of charges, a permanent civil service employee against whom charges of misconduct have been preferred may be suspended without pay for a period not exceeding 30 days (Civil Service Law, § 75, subd 3). Even though he or she is eventually discharged for misconduct, an employee suspended for a period in excess of 30 days may recover wages for the excess period, provided that the delay in disposition of charges was not occasioned by the employee’s fault (Matter of Amkraut v Hults, 21 AD2d 260, affd 15 NY2d 627; Matter of Lytle v Christian, 47 AD2d 824). The claim for accrued salary may be made by way of an action at law, and it is not necessary to commence an article 78 proceeding (see Hussey v Town of Oyster Bay, 24 AD2d 570; cf. Toscano v McGoldrick, 300 NY 156).

Where the delay is not occasioned by the employee’s fault, allowing pay for the period of suspension in excess of 30 days is justified on the grounds that "[a]s a practical matter one accused frequently has all income cut off during a period of suspension—not merely the income from the job vacated” and that "[h]e is reluctant to seek other employment especially if he has acquired some form of tenure or substantial pension rights in the job from which he is suspended” (Matter of Amkraut v Hults, supra, at p 263). On the other hand, "[i]f a delay in proceeding is occasioned by the conduct of the accused he cannot justly be heard to complain nor be allowed a recompense for the period involved” (id).

Although the record supports a finding that plaintiff evaded personal service of the notice of charges, it does not support a determination that the entire period of delay in holding the hearing resulted from his dilatory tactics. For this reason, it is not possible to conclude that plaintiff is not entitled to back pay simply on the ground that the delay was occasioned by him. Nevertheless, the record manifests an effort on the part of plaintiff to impede the resolution of the question of his entitlement to continue at his position and this effort should be determinative of his claim for salary during the period of suspension.

It cannot seriously be denied that plaintiff was evading personal service of the disciplinary charges. Moreover, that the New York City Civil Service Commission Rules may have permitted service of the notice by certified mail should not be considered as shifting the responsibility for the delay to the housing authority. It was plaintiff who took advantage of the housing authority’s possibly mistaken understanding that personal service was required and he should not benefit by such a mistake.

By contrast, it cannot be doubted that the housing authority sought to resolve the matter. After plaintiffs dismissal in May of 1972, it promptly scheduled a June hearing which he sought to avoid by evading service. When he was eventually served, again a hearing was scheduled, this time for November 29, 1973. When plaintiff did not appear at the hearing, he was tried in absentia. Nevertheless, the housing authority vacated that determination at the request of plaintiffs attorney, who had requested an adjournment but whose letter was not received until after the hearing. From that point, however, a period of more than 18 months passed before a hearing was held on June 9, 1975. While it is not alleged that plaintiff pressed for a hearing, there is also no explanation from the housing authority regarding the cause of the delay for this interval. In short, the housing authority’s actions, though hardly a model of efficiency, manifest an honest effort to determine plaintiffs rights.

Taking the above circumstances into consideration, it is reasonable to conclude that plaintiff abandoned his claim for pay during the period of suspension. In a given case, by his conduct in frustrating the administrative process to the end that the matter is not promptly disposed of, a suspended employee may be considered to have waived or simply abandoned both his position and any claim to back pay (cf. Matter of Fay v Lyons, 282 App Div 90; Matter of Schmidt v Macedonio, 47 Misc 2d 889). This principle is, of course, circumscribed in nature and should be limited to circumstances of gravity such as those presented here. In the ordinary situation there should be no burden upon a suspended employee to press for a hearing. However, where it is apparent that the employee is avoiding the opportunity to determine his rights, the employee should not be able to prolong the inevitable for an unreasonable period, and then benefit from any subsequent shortcomings of his adversary in concluding the matter. A hearing is, of course, required for purposes of determining the right to continue in the position. Nevertheless, even where it is not established that the entire delay was occasioned through the fault of the employee, for purposes of a claim to back pay during a period of suspension, an attempt to impede the administrative process for any significant period, as a result of which a prompt determination as statutorily intended has been prevented, should be deemed to be an abandonment of any claim to back pay.

It is asserted that a hearing is necessary to determine whether plaintiff abandoned his claim to back pay. This assertion should be rejected. Of course, plaintiff denies having evaded service of the disciplinary charges, but there has been ample demonstration of his dilatory tactics and his denials are not of sufficient strength to justify further expenditure of judicial effort. This is not to suggest that a determination of this sort should always or even generally be made in this manner. Rather, it is to recognize that this record is such as to yield no other conclusion than that plaintiff has failed to make out a cause of action.

To summarize, under these circumstances plaintiff may be charged with knowledge of the' availability of a hearing to determine his entitlement to his position. Having manifested by his conduct a desire to avoid that determination for an unwarranted period under all the circumstances and so as to thwart a prompt hearing and disposition, plaintiff should be deemed to have abandoned his claim to back pay.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Fuchsberg, J. (dissenting).

The order of the Appellate Division should be reversed and the case remitted for a plenary hearing to determine whether the delay in the departmental hearing was occasioned by either the plaintiff or the defendant and, on the basis of that finding, whether the plaintiff is entitled to recover his salary for any or all of the period of his suspension. A contrary determination flies in the face of the record in this case and, perhaps more important, of the protections subdivision 3 of section 75 of the Civil Service Law intends for all permanent, competitive civil service employees. That the particular plaintiff here may be morally undeserving is, of course, besides the point, since, as the majority agrees, his entitlement to salary, if any, for the excess period of his suspension beyond the statutorily permissible 30 days is not affected by the fact that the charges against him ultimately were sustained (Matter of Amkraut v Hults, 21 AD2d 260, affd 15 NY2d 627).

This is all the more so since the dismissal of the action here was under CPLR 3211, which requires defendant to "conclusively establish that [plaintiff] has no cause of action” (Rovello v Orofino Realty Co., 40 NY2d 633, 636). Here, certainly on the present state of the record, no such showing was made. To the contrary, there is much from which it can be found that all or part of the delay was acquiesced in or caused by the defendant.

The plaintiff, a 54-year-old inspector of demolition, who had then been employed by the defendant for about 20 years, was suspended without pay on May 2, 1972 pending charges that he had unlawfully accepted gratuities on two occasions. However, the defendant did not get around to drawing its hearing notice until nearly a month later. That notice, dated June 1, called for a hearing on June 21. Defendant claims it was unsuccessful in effecting personal service at plaintiff’s home during the eight-day interval between June 6, 1972 through June 14, 1972; plaintiff denies knowledge of these efforts.

In any event, defendant made no further attempt to serve a notice until October when five months had elapsed. It offers no explanation for its failure to have done so, though, since it depended on New York City Housing Authority police officers to serve its hearing notices, personnel was readily available around the clock for that purpose.

Nor is it irrelevant to this picture that the Rules of the New York City Civil Service Commission provide for service of charges in disciplinary proceedings by registered mail when they cannot be made by personal service (rule 6.4.3). The defendant never essayed the simple and foolproof mail route at all.

Interestingly, when in October, it finally renewed its efforts to serve the plaintiff, it effected personal service within 15 days. Claims that there was evasion during any of these relatively brief periods are controverted under oath in the affidavits submitted by the plaintiff.

Upon receiving the notice, plaintiff’s counsel promptly wrote defendant requesting specific documents and asked for an adjournment of one month for preparation. It was the only adjournment plaintiff ever requested. The request, sent on November 22, 1973, appears to have miscarried and did not arrive until December 3, 1973. Upon learning that in the interim a hearing had been held in absentia, plaintiff applied at once to vacate it; the application was granted, presumably on its merits.

Thereafter, defendant again did nothing to prosecute the charges for the next year and a half, to be exact from December, 1973 until May 7, 1975, when the defendant notified him it intended to substitute the fact of defendant’s Criminal Court conviction several months earlier, of the crime of receiving unlawful gratuities, which arose out of the same events on which the original charges had been based. Again defendant offers no explanation whatsoever for this delay. Plaintiff had never requested that the defendant’s charges be postponed because of the pendency of criminal charges. Therefore, if, perchance, it suited the convenience of the defendant to await the outcome of the latter so as to avoid the need, in the event of a conviction, for a full departmental trial, or to assure it two alternative paths for success at the departmental trial, one based on the possible criminal conviction and the other, since an acquittal would not bind it, on the underlying charges, these would not be considerations which would justify charging any consequential delay to the plaintiff.

In sum, since the departmental charges were disposed of on June 9, 1975, the time lapse which the defendant, who bore the burden of prosecuting the departmental charges, seeks to impose on the plaintiff covers a passage of three years and one month from the suspension in May, 1973. Nevertheless, because it pursued its efforts to serve the plaintiff during two brief and concentrated periods, one covering a span of only 8 days right after the hearing notice was first issued and the other, which was successful, of but 15, both under circumstances that are in factual dispute, defendant would saddle the plaintiff, ipso facto, with its own failure to proceed through the rest of the time during all these years.

Consequently, I find it difficult to see how it can be said, as does the majority, that, as a matter of law the plaintiff "impede[d] the resolution of the question of his entitlement to continue at his position”. It is also strange to find the importation here of the doctrine of abandonment, which we have heretofore never applied to circumstances where a civil service employee is under involuntary suspension, but only to cases involving employees who refuse or neglect to perform the duties of their positions, as when a public officer’s "nonuser [of his office] by voluntary relinquishmen or by election to another office” has created a vacancy (Matter of Dawson v Knox, 231 App Div 490, 494 [concurring opn], affd without opn 267 NY 565).

Accordingly, the order should be reversed and the case heard on the merits.

Judges Jasen, Gabrielli and Wachtler concur with Judge Cooke; Judge Fuchsberg dissents and votes to reverse in a separate opinion in which Chief Judge Breitel and Judge Jones concur.

Order affirmed.  