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GREINER v. COUNTY OF GREENE

January 28, 1993

GEORGE GREINER and DONNA GREINER, Plaintiff,
v.
COUNTY OF GREENE, CHARLES DAUCHER, SHERIFF OF GREENE COUNTY and RONALD GARRISON, Defendants.


Scullin, Jr.


The opinion of the court was delivered by: FREDERICK J. SCULLIN, JR.

Memorandum-Decision and Order

Factual Background

 The plaintiff, George Greiner, *fn1" was employed by the Greene County Sheriff's Department on October 13, 1989 when he was called to the scene of a residential fire in Lexington, New York. After completion of his investigation, the plaintiff prepared a written report which he personally handed to Sheriff Charles Daucher. That report stated the homeowner, Mr. Van Etten had reported a .22 caliber gun missing to Deputy Miller and to the plaintiff. In this report, the plaintiff denied having taken possession of the gun.

 On October 19, 1989, the plaintiff took the gun from the trunk of his personal vehicle and hid it in a flower bed outside the police station. Two days later, on October 21, 1989, the plaintiff reported to Deputy Cole that there was a gun in the flower bed outside the police station. When Deputy Cole retrieved the gun, the plaintiff commented that the gun looked similar to the one reported stolen by Mr. Van Etten. At no time did the plaintiff indicate to Deputy Cole that he had been the one to place the gun in the flower bed.

 On October 22, 1989, the plaintiff called Sheriff Daucher and requested a personal meeting. At the meeting, the plaintiff reported that he had "found" the gun in his bags on October 16, 1989, that he knew that the gun had been reported stolen and he "panicked." He explained that he had originally planned on disposing of the gun at the fire scene, but had changed his mind. This conversation was memorialized in a written statement signed by the plaintiff on October 22, 1989.

 After conferring with the Greene County District Attorney, Sheriff Daucher directed that the plaintiff be arrested on a charge of Criminal Possession of Stolen Property in the Fourth Degree, a felony. He was arrested on October 24, 1989, following which he was arraigned and released on his own recognizance. He was suspended from his position with the Sheriff's Department on October 31, 1989. A disciplinary hearing was held on November 28, 1989 wherein the hearing officer concluded that Greene County had met its burden of proof in establishing that the plaintiff had knowingly possessed the .22 caliber gun and that he had committed other acts amounting to misconduct. The hearing officer recommended that the plaintiff be dismissed from his employment, but that if he was found to be "not guilty" of the criminal charge lodged, then he should be reinstated to his former position, or at least have his name placed on the preferred eligible employee list; there was no mention made of back pay in the hearing officer's recommendation.

 During the pendency of that appeal, the Greene County Grand Jury was presented the evidence in the plaintiff's case and declined to issue an indictment, a procedure commonly referred to as a "No Bill." As a result, the plaintiff commenced two additional proceedings: in the first the plaintiff filed, another Article 78 proceeding before Justice George L. Cobb of the Greene County Supreme Court, seeking reinstatement to his position and an award of back pay; and in the second, joined by his wife, Donna Greiner, as co-plaintiff, he filed the complaint in the instant lawsuit in federal court on June 10, 1991, in which he seeks relief under the Civil Rights Act.

 On June 27, 1991, Justice Cobb issued a written decision on the plaintiff's second Article 78 proceeding. Justice Cobb found the "No Bill" to be the equivalent of a finding of "not guilty" and therefore, pursuant to the hearing officer's recommendation, he found the plaintiff to be entitled to reinstatement. However, Justice Cobb also found that because the plaintiff's dismissal was based not upon the criminal charge but rather upon his misconduct, he was not entitled to back pay and benefits. Justice Cobb's decision was appealed to the Appellate Division, Third Department.

 In November 1991, the Appellate Division, Third Department rendered its decision on the first Article 78 proceeding commenced by the plaintiff in which he appealed the hearing officer's decision. The court found that the evidence was sufficient to support the determination of the hearing officer that Greene County had met its burden of proof but as to the back pay, ruled that the plaintiff was entitled to back pay for the period October 25 through October 31, 1989 (the date on which he was suspended) and the period November 30, 1989 (30 days after his suspension) through May 20, 1990 (when he was dismissed from the Sheriff's Department).

 On December 17, 1992, the Appellate Division, Third Department rendered its decision on the appeal that was taken from Justice Cobb's June 1991 decision (the second Article 78 proceeding filed by the plaintiff). The Appellate Division affirmed Justice Cobb on the issue of the "No Bill" but held that although the plaintiff was not entitled to back pay from the period from his dismissal until the first employment vacancy after the Grand Jury failed to indict him, he was entitled to back pay from the point when the first employment vacancy occurred until his actual reinstatement. The case, as modified, was remanded for a determination of the amount of back pay owed.

 As stated, the plaintiffs filed the instant lawsuit on June 10, 1991. Jurisdiction is grounded in section 1331 and section 1343(3). The plaintiffs have premised their lawsuit on general violations of the Equal Protection and Due Process Clauses of the fifth and fourteenth amendments to the United States Constitution, on 42 U.S.C. § 1983, on Article I of the United States Constitution, on the New York Civil Service Law and on the New York Civil Practice Law and Rules. The plaintiffs do not assert which violations of their rights pertain to which causes of action. There are asserted seven causes of action:

 1) against all the defendants: violation of (unspecified) civil rights by depriving him of due process regarding his property interest in employment by virtue of the defendants' unlawful action, thus entitling him to back pay, pension rights, terminal leave, health benefits and other compensation from the date on which he was suspended (see Complaint at PP 24-27);

 2) against all the defendants: by virtue of the acts of the defendants, he has suffered emotional distress and mental suffering (see Complaint at PP 28-30);

 3) against all the defendants: by virtue of the willful, unlawful and malicious acts of the defendants, which were in wanton disregard for the rights and feelings of the plaintiff, he demands exemplary or punitive damages (see Complaint at PP 31-32);

 5) against defendant Garrison only (unspecified capacity): for malicious prosecution of the plaintiff (see Complaint at PP 39-41);

 6) against defendant Garrison, in his individual and official capacity, and against the County of Greene: for wrongful discharge from his civil service position, lost pay ...


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