In the Matter of WANDA H. ROTKIEWICZ, Petitioner,
DEPARTMENT OF MENTAL HYGIENE OF THE STATE OF NEW YORK et al., Respondents.
PROCEEDING under article 78 of the Civil Practice Act (transferred to the Appellate Division of the Supreme Court in the fourth judicial department by an order of the Supreme Court at Special Term, entered in Oneida County), to review a determination of respondents dismissing petitioner from her position.
Salvador J. Capecelatro for petitioner.
Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown, Herman N. Harcourt and Raymond B. Madden of counsel), for respondents.
MCCURN, P. J.
This is a proceeding under article 78 of the Civil Practice Act to review a determination dismissing the petitioner from her civil service position as head dining room attendant in the employees' cafeteria at Marcy State Hospital.
On February 2, 1953, petitioner was served with a notice charging her with incompetency as follows:
Specification I--Failure to carry out the duties of your position of which you have received explicit instructions, as evidenced by the fact that on January 31, 1952 you served to the employees' portions of meat far in excess of prescribed ration allowance, resulting in coinsiderable wastage of foodstuffs.'
Petitioner, although not entitled to a hearing under the statute, nevertheless was accorded a hearing and questioned under oath by the acting director of the institution. Subsequent to the hearing, petitioner was notified that she had been found guilty of the charge of incompetency and that the punishment would be dismissal from the service.
No question is raised here as to compliance with the procedure for removal as established by section 22 of the Civil Service Law, and our inquiry is whether the charges are substantial and whether there is any evidence to support them ( Matter of Harvey v. Catherwood, 268 A.D. 1016, affd. 295 N.Y. 843; Matter of Albano v. Hammond, 268 N.Y. 104, 107).
The situation which gave rise to the charges against the petitioner is that complaints had come to the attention of Mr. Mason, business officer at the hospital, and Mr. Lyman, head clerk at the hospital, that employees who took their meals at west group cafeteria had been served inadequate portions of meat. On January 31, 1952, Messrs. Mason and Lyman went to the kitchen for the west group cafeteria and remained there and observed the cooks while they broiled about 153 to 164 pounds of beefsteak and sliced the same into portions for service to 171 employees. It was the petitioner's duty to personally serve and deliver all meat portions to the hospital employees partaking of the meals at the west group cafeteria. Messrs. Mason and Lyman were present in the kitchen and observed the slicing of the meat by the cooks and estimated that it was sliced ...