
    In the Matter of Paul J. Currier, Petitioner, v Bruce L. Clifford, as City Manager of the City of Auburn, et al., Respondents.
   Determination unanimously modified and as modified confirmed without costs and petition granted, in accordance with the following memorandum: This CPLR article 78 proceeding was transferred to our court pursuant to CPLR 7804 (g) to review respondents’ determination terminating petitioner’s employment as a heavy equipment operator for the City of Auburn based upon a finding of incompetence and misconduct. Petitioner contends that the determination to terminate his employment was arbitrary and capricious and not supported by substantial evidence. We disagree. Petitioner was afforded a full hearing under Civil Service Law § 75 and the proof at the hearing was sufficient to establish both incompetency and misconduct. In view of petitioner’s prior work record and history of disciplinary charges, the penalty of dismissal was appropriate (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233-234).

We do agree with petitioner, however, that he has not been fully compensated for all accrued wages and benefits in excess of the maximum time of suspension allowed under the statute (Civil Service Law § 75 [3]). The record indicates that petitioner’s suspension on these charges commenced on March 24, 1984 and continued through July 10, 1984 when the determination was made. The letter of the City Comptroller is in error in stating that “you will be compensated for all unused vacation time, personal leave time, and your suspended time in excess of the maximum time of 60 days between May 24, 1984 through July 10, 1984”. The maximum time pursuant to the statute is 30 days which commenced on March 24, 1984. Thus, the petition should be granted to the limited extent of directing respondents to pay petitioner the salary he would have earned for the period in excess of the statutory 30-day period under Civil Service Law § 75 (3) (see, Sinicropi v Bennett, 92 AD2d 309, affd 60 NY2d 918). (Article 78 proceeding transferred by order of Supreme Court, Cayuga County, Corning, J.) Present — Callahan, J. P., Boomer, Pine, Balio and Lowery, JJ.  