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October 15, 1982

SAM HILF, Plaintiff,

The opinion of the court was delivered by: SWEET


 Plaintiff Sam Hilf ("Hilf"), an employee of defendant New York City Housing Authority (the "Authority") brought this action pursuant to 42 U.S.C. § 1983 seeking monetary and injunctive relief from the Authority's indefinite suspension of Hilf without salary. Hilf moved for a preliminary injunction pursuant to Rule 65 of the Fed.R.Civ.P. enjoining the Authority from continuing his suspension without pay and for other appropriate relief. At the hearing on the preliminary injunction on October 6, 1982, Hilf proposed that pursuant to Rule 65(a), Fed.R.Civ.P. there being no questions of fact, the hearing would be on the merits. The Authority interposed no serious objection.

 Hilf was hired as an Assistant Architect by the Authority on August 7, 1978. On August 4, 1982 Hilf received a letter from Reginald Bender, Deputy Director of Design, informing him that as of that date, Hilf would be suspended without pay on grounds of "disruptive behavior" and that "formal disciplinary charges" would be served on Hilf "in due course." On September 7, 1982 Hilf received a letter from Hugh Kelleher, Director of Personnel at the Authority, directing him to report on September 22, 1982 for a psychiatric examination to the offices of Dr. Jerome Driesen, one of the psychiatrists designated by the New York City Department of Personnel to conduct such evaluations pursuant to section 72 of the N.Y.Civ.Serv.Law (McKinney 1973). *fn1" Hilf appeared at Dr. Driesen's office for the appointment but because Dr. Driesen had not received certain papers from the Authority, he did not conduct the examination. According to the Authority Hilf appeared twenty minutes late for the rescheduled appointment on September 29, 1982 and the examination was again postponed until October 6, 1982.

 On September 8, 1982 Hilf, assuming that he was being removed pursuant to section 75 of the N.Y.Civ.Serv.Law. (McKinney 1973 & Supp. 1981), *fn2" wrote a letter to the Authority demanding that he be restored to the payroll. His counsel followed with another demand on September 10, 1982. The Legal Department of the Authority responded on September 16, 1982 in a letter stating that it would not restore him to active duty or payroll, and that upon receiving the psychiatric report, the Authority would "be in a better position to determine whether to proceed under section 72 or section 75 of the Civil Service Law, or both."

 The Authority submits that over a period of several months Hilf persisted in a course of conduct characterized as "disruptive" and "nonproductive." At the direction of the Department of Personnel Hilf reported for psychiatric examinations on two occasions. On August 4, 1982 Hilf allegedly engaged in an altercation at work which culminated in his physical assault of a colleague.

 The Authority's affidavit and the statements made in open court establish that at the time of the suspension, the Authority was contemplating disciplinary proceedings for incompetency or misconduct against Hilf pursuant to section 75. However, the Authority has not provided Hilf with a formal written statement of charges, see Coogan v. Dunning, 78 A.D.2d 580, 432 N.Y.S.2d 565 (4th Dep't 1980); Bateman v. City of Ogdensburg, 55 A.D.2d 781, 389 N.Y.S.2d 486 (3d Dep't 1976); Crosson v. Golar, 45 A.D.2d 474, 359 N.Y.S.2d 301 (1st Dep't 1974); O'Connor v. New York City Transit Authority, 144 N.Y.S.2d 409 (Sup.Ct. 1955), nor has it scheduled a disciplinary hearing in the foreseeable future, see Keyer v. Civil Service Comm. of City of New York, 397 F. Supp. 1362 (E.D.N.Y. 1975); Marsh v. Hanley, 50 A.D.2d 687, 375 N.Y.S.2d 409 (3d Dep't 1975). Most critically from Hilf's perspective, the Authority did not restore him to the payroll on the thirty-first day of his suspension as required by section 75. *fn3"

 In fact, according to its submissions, it was not until sometime after the suspension that the Authority elected to proceed under section 72 at least in part because such a proceeding offered Hilf the possibility of reinstatement in the future. *fn4" The section provides:

1. When in the judgment of an appointing authority an employee is unable to perform the duties of his position by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workmen's compensation law, the appointing authority may require such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction. If, upon such medical examination, such medical officer shall certify that such employee is not mentally fit to perform the duties of his position, the appointing authority may place such employee on leave of absence. An employee placed on leave of absence pursuant to this section shall be given a written statement of the reasons therefor. An employee on such leave of absence shall be entitled to draw all accumulated, unused sick leave, vacation, overtime and other time allowances standing to his credit.

 On its face, the statute permits the Authority to place an employee on medical leave after the prescribed medical examination and only then if the employee has been certified as mentally unfit to perform his duties. Even if Hilf was in fact examined on October 6, 1982, the examination came more than two months after Hilf was removed. Thus the Authority failed to comply with section 72.

 Moreover, in Laurido v. Simon, 489 F. Supp. 1169 (S.D.N.Y. 1980), and Snead v. Department of Social Services, 409 F. Supp. 995 (S.D.N.Y. 1975), section 72 has been held to be unconstitutional as it fails to provide "rudimentary due process" in not requiring a full adversarial hearing before placing employees on involuntary leave of absence for mental unfitness. In Snead, the court invited the State to enact procedures that would cure the statute's constitutional infirmities. Seven years later, the State having declined the invitation, the Laurido court set forth a procedure which would comport with minimal due process. *fn5" It is conceded that the Authority has not followed this procedure.

 The Authority asserts that this case falls within an exception carved out by the Laurido court in a footnote, 489 F. Supp. at 1177 and n. 11. There the court noted that under exceptional circumstances an employee could be placed on medical leave pending a full hearing. *fn6" However, according to Laurido, in such a case, the due process safeguards set forth in that opinion must be provided within a reasonable time after the employee is placed on involuntary medical leave.

 More than two months has elapsed since Hilf's removal. He has not received notice of the facts upon which the Authority's actions were based nor has a psychiatrist's report been forthcoming. The Authority's decision to proceed under section 72 came after the suspension and far too much time has expired since suspension to permit the Authority to claim the exceptional circumstances described in the Laurido footnote.

 Thus, the Authority unlawfully suspended Hilf without pay, action which constitutes a denial of due process actionable under 42 U.S.C. § 1983. See Lewis v. New York City Transit Authority, No. 79-C-139 (E.D.N.Y. 1979); Keyer v. Civil Service Commission of the City of New York, 397 F. Supp. 1362 (E.D.N.Y. 1975); Vega v. Civil Service Commission, City of New York, 385 F. Supp. 1376 (S.D.N.Y. 1974). As such, Hilf is awarded back pay from August 4, 1982 to the present and shall be restored to the payroll. Punitive damages are inappropriate here, given the confused state of the law on section 72 and indications in the ...

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