Opinion
November 12, 1974
In a proceeding pursuant to article 78 of the CPLR to annul a determination, made after a hearing, that petitioner, an employee of the appellant school district, had participated in a strike and docking him therefor, the appeal is from a judgment of the Supreme Court, Nassau County, entered August 6, 1973, which granted the application and directed that petitioner be reimbursed for moneys withheld from his salary. Judgment affirmed, with costs. The issue in this proceeding was whether the determination under review was supported by substantial evidence. Since this issue is specified in Question 4 of CPLR 7803, Special Term should not have decided it, but instead should have transferred the proceeding directly to this court (CPLR 7804, subd. [g]). However, we have reviewed the record of the hearing and conclude that the presumption arising under section 210 (subd. 2, par. [b]) of the Civil Service Law that petitioner was absent from work on the days in question without permission was amply refuted by him. There was absolutely no evidence offered to the contrary. Hence the determination under review was arbitrary and capricious and was properly annulled. Martuscello, Acting P.J., Shapiro, Christ, Benjamin and Munder, JJ., concur.