Rossman v. Starr

— Petition dismissed and determination of the Administrator of the Housing and Development Administration of the City of New York unanimously confirmed in part with leave to petitioner to apply at Special Term to serve amended petition, without costs and without disbursements. In this article 78 proceeding transferred to this court by Special Term (CPLR 7803, subd 4; 7804, subd [g]) whereby petitioner alleges that the determination of the administrator suspending petitioner without pay for a period of two months from the date of suspension and demoting petitioner from the position of Senior Plumbing Inspector to Plumbing Inspector is not supported by substantial evidence, we find the brief of petitioner does not address the issue raised by the petition. We do find, however, on our review of the record that the determination of the administrator is supported by substantial evidence. We find that petitioner’s brief is addressed solely to the claims that petitioner’s suspension for the period of two months was unlawful and that there was inordinate delay in proceeding with departmental charges after petitioner was arrested on charges which led to his indictment, trial, and acquittal. We note that the corporation counsel agrees that if petitioner was unlawfully suspended without pay for a period of *757more than 30 days, and did not waive such delay, and if that issue were properly before us, petitioner would be entitled to his back pay for the period of such delay. However, the petition does not assert such claim. In these circumstances, we agree with the corporation counsel that the appropriate disposition here is to dismiss the petition, and confirm the administrator’s determination as set forth hereinabove, and remand this matter to Special Term where petitioner could apply for leave to serve an amended petition, and respondents could, if so advised, either resist such application based on lateness and possible prejudice caused thereby, or at the very least put in an answer to the amended petition, if leave to serve an amended petition is granted. As to the claim of excessiveness of penalty raised in petitioner’s brief, there is no need to decide that issue now—since its resolution is necessarily related to the question whether petitioner’s suspension prior to the disciplinary hearing was unduly or unnecessarily protracted. Concur—Lupiano, J. P., Birns, Silverman and Markewich, JJ.