(dissenting). I dissent and vote to affirm the judgment.
As a tenured public employee the petitioner had a property right in his position. Our Constitution provides that "[appointments * * * in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive” (NY Const, art V, § 6). The petitioner was appointed after passing a competitive examination. Once having been appointed to his position and obtaining tenure (Civil Service Law, §§ 58, 63), the petitioner held a property interest (see Arnett v Kennedy, 416 US 134, 151-152; Perry v Sindermann, 408 US 593, 601-603).* That property interest *281was the right of an individual to enjoy a privilege recognized as essential to the orderly pursuit, of happiness by free men (Meyer v Nebraska, 262 US 390, 399).
The petitioner’s property right could not be removed from him unless the requirements of due process were satisfied. Due process demands some form of a hearing. “This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. Wolff v. McDonnell, 418 U.S. 539, 557-558 (1974). See, e.g., Phillips v. Commissioner, 283 U.S. 589, 596-597 (1931). See also Dent v. West Virginia, 129 U.S. 114, 124-125” (Mathews v Eldridge, 424 US 319, 333).
Section 73 of the Civil Service Law, permitting the termination of employment status after a continuous absence from duty for a year or more arising from disability, makes no provision for a hearing and the petitioner was not given a hearing before he was separated from his employment. We must read into the provisions of the statute the requirement of a hearing in order to save it from a declaration of unconstitutionality, if the statute is otherwise constitutional.
In my view the statute is not unconstitutional when the requirement of a hearing is impliedly read into its provisions. A municipality should not be forced to retain indefinitely in its employment one who cannot discharge his duties, and it may well become difficult, if not impossible, to find a qualified substitute to fill the void in the roster. At the same time, however, neither should the disabled employee be deprived of his position without the opportunity of being heard.
In determining the kind and extent of the hearing which due process implies, the Supreme Court of the United States has identified several factors which must be considered — (1) the private interest affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedure used, and the probable value of different or additional safeguards, and (3) the government’s interest and the administrative burden that the procedural requirement would entail (Mathews v Eldridge, 424 US 319, 334-335, supra). The weight of these factors controls whether an evidentiary or a simple hearing is necessary under the circumstances of the case.
*282The private interest of the petitioner is substantial. Outside of the liberty of the individual and the provisions and security of his home and shelter, I can think of no interest greater than the right to pursue and enjoy a livelihood. The subsistence of the individual depends largely on the fruits of his labor, and the deprivation of his livelihood strikes at the roots of his dignity and integrity.
The risk of an erroneous decision is less under the circumstances than in the instance of charges leading to disciplinary measures under section 75 of the Civil Service Law. The need to establish the factual foundation for action under section 73 of the Civil Service Law is much less stringent — the absence for the required period due to disability is the factual pattern contemplated by the statute. Thus, an evidentiary hearing would not be necessary. That does not mean that an opportunity for a simple hearing should not be afforded. Even though the municipal board or officer may have the power to terminate the employee’s status, the employee may be able to persuade them that such action should not be taken, or should be deferred (see, e.g., Mathews v Eldridge, 424 US 319, 348, supra).
The interest of the government is, as previously stated, that the services rendered by the employee should continue. However, there is very little lost in time or added in administrative burden to require that notice of the impending action be given to the employee and an opportunity granted to him to state why his separation from public service should not be directed. At the least, the employee should be enabled to present alternative action or other just solutions. Thus, in Matter of Papasidero v Fasano (19 NY2d 440, 442) it was said:
"The reason petitioner’s proceeding for review of the commissioners’ action has been dismissed by the Special Term and the Appellate Division is that petitioner in his petition did not dispute his inability to perform fully all of the duties of a policeman; but alleged that an injury sustained in the course of duty had impaired his physical ability and that he is 'willing and able to perform light police work and duties’.
"Thus, it was concluded by the court that since petitioner does not show that he can perform all the duties of the position which he held, there is no reason for a hearing and his removal by the commissioners without a hearing in violation of the law does not justify judicial relief.
"But the statutory purpose to require a hearing cannot be *283given so categorically a negative answer in this case. One function of a hearing is to permit the person affected to present grounds for the consideration of the administrative officer of alternative action and to advise the administrator as to what may be a just solution.
"That the administrator may in the end rule on the merits against the person entitled to the hearing or that he may have good enough ground to do so are not sufficient reasons to preclude a statutory right to tell the administrator that his decision should be the other way.”
Hence, the provisions for a simple hearing before action is taken under section 73 of the Civil Service Law should be read into the statute in order to preserve its constitutionality (cf. People v Lally, 19 NY2d 27, 35; People v Kaiser, 21 NY2d 86, 103; Matter of Pannell v Jones, 36 NY2d 339, 342-344; Matter of Bodnar v New York State Thruway Auth., 52 AD2d 345; Bevan v New York State Teachers’ Retirement System, 74 Misc 2d 443, mod 44 AD2d 163).
We cannot now speculate what a hearing may produce to benefit the petitioner; it is enough that the petitioner must be accorded his day before the village is empowered to act. The judgment should therefore be affirmed.
Damiani and Rabin, JJ., concur with O’Connor, J.; Hopkins, J. P., dissents and votes to affirm the judgment, with an opinion, in which Titone, J., concurs.
Judgment of the Supreme Court, Westchester County entered March 27, 1978, reversed, on the law, with $50 costs and disbursements, and proceeding dismissed on the merits. Cross appeal dismissed as academic, without costs or disbursements.
To be distinguished from the petitioner’s status as a tenured public employee is *281the police officer in Bishop v Wood (426 US 341), who served at pleasure under the law of North Carolina.