Opinion
October 24, 1988
Adjudged that the petition is granted to the extent that the matter is remitted to the Transit Authority for computation of the amount of back pay owed to the petitioner; in all other respects, the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.
Assuming, as argued by the petitioner, that the Hearing Officer erred in admitting into evidence the transcript of a taped conversation between the petitioner and an informant, the Transit Authority's determination need not be annulled. The evidence adduced at the hearing, exclusive of the transcript, was "sufficient to satisfy a reasonable man, of all the facts necessary to be proved in order to authorize the determination" (Matter of Weber v Town of Cheektowaga, 284 N.Y. 377, 380).
Moreover, we do not find the penalty of dismissal to be an abuse of the Transit Authority's discretion under the circumstances at bar (see, Matter of Pell v Board of Educ., 34 N.Y.2d 222; Matter of Duran v Gunn, 135 A.D.2d 628).
However the matter must be remitted to the Transit Authority based upon our determination that Civil Service Law § 75 (3), which provides that an employee may be suspended without pay for no more than 30 days, requires that the petitioner be paid by the Transit Authority for the entire period of his suspension, which commenced on July 2, 1985, and ended with his dismissal on January 16, 1987, less 30 days and less those periods of delay attributable to him (see, Gerber v New York City Hous. Auth., 42 N.Y.2d 162). The existence of a "substitute disciplinary procedure" in the collective bargaining agreement between the Transit Workers Union and the Transit Authority, which the petitioner was required to follow until such time as he was permitted to elect a hearing under Civil Service Law § 75, does not serve to forestall the Transit Authority's obligation with respect to back pay, less those periods of delay attributable to the petitioner, as the collective bargaining agreement contains no provision relating to this obligation (see, Gellman v Gunn, 143 A.D.2d 628; cf., Matter of Kavoukian v Bethlehem Cent. School Dist., 70 A.D.2d 1026).
We have considered the remaining contentions raised by the petitioner and find them to be without merit. Mollen, P.J., Mangano, Thompson and Brown, JJ., concur.