
    In the Matter of Frank C. McGirr, Appellant-Respondent, v. Division of Veterans Affairs, Executive Department, State of New York, et al., Respondents-Appellants.
   In a proceeding pursuant to article 78 of the CPLR to annul a determination of respondent Frank V. Votto, Director of the Division of Veterans Affairs, that petitioner’s absence from work constituted a resignation from his position of veteran’s counselor, (1) petitioner appeals from a judgment of the Supreme Court, Richmond County, dated April 2, 1974, insofar as it fails to direct his reinstatement to his position (the judgment directed the Division of Veterans Affairs to grant petitioner a hearing) and (2) respondents cross-appeal from the judgment in its entirety. Judgment reversed, on the law, without costs, and proceeding remitted to Special Term for a hearing in accordance herewith. This record presents a serious question of fact as to whether petitioner complied with the requirements of 4 NYCRR 5.3 (d). He claims he called his office and reported sick, thereby providing an ongoing excuse for his absence, sufficient under rule 5.3. Respondents claim that when petitioner telephoned the office he stated he would be out sick for the rest of the week; that therefore his absence became unexcused as of the Monday following his last telephone call; and that the absence continued unexcused for more than 10 days thereafter. This question of fact can only be resolved at a hearing. Accordingly, it was error to grant judgment to petitioner on the papers alone. G-ulotta, P. J., Martuscello, Latham, Christ and Benjamin, JJ., concur.  