Opinion
January 14, 1971
Appeal from the Erie Special Term.
Present — Del Vecchio, J.P., Gabrielli, Moule and Henry, JJ.
Determination unanimously annulled, with costs, and petition granted. Memorandum: Pursuant to section 75 Civ. Serv. of the Civil Service Law, a proceeding was started by the Erie County Department of Social Services against petitioner, a caseworker with permanent civil service status, by the service of a notice of hearing containing three charges of misconduct. The first two charges set forth allegations that petitioner entered the home of a woman, a former social services' client, on the false pretense of having department business with her and that while there he had sexual intercourse with her. The third charge alleged that the visit was not in the ordinary course of his employment. A hearing was held and the Commissioner of Social Welfare found that petitioner's visit to the home of the former client was unscheduled, totally unwarranted and a gross misuse of time and violation of petitioner's duties as a caseworker. There was no finding against petitioner that he was guilty of any of the allegations of the first two charges. The testimony against petitioner on the first two charges was incredible as a matter of law. ( Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241.) The conduct of the whole proceeding clearly shows that the third charge was merely incidental to the first two charges, and was not one of any substance. In any event, the findings against petitioner on the third charge were not justified, as the visit was in the ordinary course of department business.