| Matter of Gomez v Stout |
| 2008 NY Slip Op 04870 [51 AD3d 1021] |
| May 27, 2008 |
| Appellate Division, Second Department |
| In the Matter of Valerie Gomez, Petitioner, v Joseph A.Stout, as Commissioner of the Westchester County Department of Parks, Recreation andConservation, et al., Respondents. |
—[*1] Charlene M. Indelicato, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz andThomas G. Gardiner of counsel), for respondents.
Proceeding pursuant to CPLR article 78 to review a determination of Joseph A. Stout, theCommissioner of the Westchester County Department of Parks, Recreation and Conservation,dated November 2, 2005, which, upon a decision of Ralph Butler, the Commissioner of theWestchester County Department of Public Works, as designated agent, adopting therecommendation of a hearing officer dated October 20, 2005, made after a hearing, finding thepetitioner guilty of misconduct and incompetence, terminated her employment as assistant gamesmanager, grade VII.
Adjudged that the petition is granted, the determination is annulled, with costs, and thematter is remitted to Joseph A. Stout, the Commissioner of the Westchester County Departmentof Parks, Recreation and Conservation, for the appointment of a duly-qualified individualauthorized to review the recommendation of the hearing officer.
Joseph, A. Stout, the Commissioner of the Westchester County Department of Parks,Recreation and Conservation (hereinafter the Commissioner) properly disqualified himself fromreviewing the recommendation of the hearing officer and acting on any of the charges because ofhis personal involvement with the case. However, the Deputy Commissioner is the onlyindividual authorized to act in the Commissioner's absence (see Westchester CountyCharter § 134.41). Thus, the Commissioner erred in appointing Ralph Butler, theCommissioner of the Westchester County [*2]Department ofPublic Works, to review the recommendation of the hearing officer and render a finaldetermination (see Matter of McComb v Reasoner, 29 AD3d 795, 799-800 [2006]).Accordingly, the petition must be granted and the determination terminating the petitioner'semployment annulled, and the matter must be remitted to the Commissioner for the appointmentof a duly-qualified individual authorized to review the recommendation of the hearing officer.
In light of our determination, we do not reach the petitioner's remaining contentions. Skelos,J.P., Ritter, Dillon and Dickerson, JJ., concur.