In the Matter of Ivan Cepeda, Petitioner, v. Richard Koehler, as Correction Commissioner of the of New York, et al., Respondents

In the Matter of Ivan Cepeda, Petitioner, v Richard Koehler, as Correction Commissioner of the of New York, et al., Respondents. [MAJORITY] Petition pursuant to CPLR article 78, transferred to this court by order of the Supreme Court, New York County (Bruce McM. Wright, J.), entered on or about January 18, 1989, to annul a determination of respondent New York City Department of Correction, dated on or about September 24, 1987, which penalized petitioner by requiring forfeiture of 15 vacation days plus payment of $1,500 fine, is unanimously granted to the extent of annulling the penalty and remanding the matter to respondents for reconsideration of the penalty imposed, without costs or disbursements. In reviewing the record, we find that there was substantial evidence to support the Administrative Law Judge’s determination that petitioner, on or about July 23,1986, while on sick leave, left his place of residence without having properly notified his institution (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). However, since there appears to be a question regarding the parties’ consent to the otherwise illegal penalty, consisting of the forfeiture of 15 vacation days plus a $1,500 fine (see, CPLR 7803 [3]), annulment of the penalty is warranted. It is preferable that respondent impose the appropriate penalty rather than having this court substitute the Hearing Officer’s original recommendation of a 30-day suspension without pay (see, Matter of Ahsaf v Nyquist, 37 NY2d 182). Concur—Sullivan, J. P., Milonas, Rosenberger and Smith, JJ.