Carney v. Memorial Hospital & Nursing Home

Mahoney, P. J., and Weiss, J., concur in part and dissent in part in a memorandum by Mahoney, P. J. Mahoney, P. J. (concurring in part and dissenting in part).

In our view, the complaint states a cause of action for violation of plaintiff’s rights pursuant to section 75 of the Civil Service Law such that the sixth cause of action should not have been dismissed. Accrued salary lost by an employee suspended for more than 30 days (Civil Service Law, § 75, subd 3) may be sought by way of a civil action (Gerber v New York City Housing Auth., 42 NY2d 162, 165). While the complaint does not specifically state that plaintiff seeks accrued salary, but is instead couched in terms of deprivation of due process, the' complaint should be read liberally (CPLR 3026), particularly since the rights afforded in section 75 of the Civil Service Law do indeed derive from the concept of due process (see Matter of Economico v Village of Pelham, 50 NY2d 120, 124-125). Here, the complaint alleges that plaintiff was entitled to the procedural safeguards of section 75 of the Civil Service Law and that he was denied them. Defendants’ response that plaintiff was afforded a hearing does not warrant summary dismissal of the complaint since it appears that the alleged hearing was not timely.