In the Matter of Daniel Trahan, Petitioner, v. Jefferson County Department of Social Services, Respondent

Determination unanimously annulled on the law without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: Petitioner was terminated from his position as a caseworker for respondent after a hearing pursuant to Civil Service Law § 75. Petitioner then commenced this CPLR article 78 proceeding seeking reinstatement, and the proceeding was transferred to this Court pursuant to CPLR 7804 (g). We conclude that the determination terminating petitioner “was made in violation of lawful procedure” (CPLR 7803 [3]). Respondent’s commissioner, who reviewed the Hearing Officer’s report and made the final determination to terminate petitioner, also preferred the charges, selected the Hearing Officer and testified at the hearing. Thus, he was disqualified from acting on the charges (see, Matter of Norton v Village of Phoenix Bd. of Trustees, 245 AD2d 1143). We therefore annul the determination and remit the matter to respondent for a de novo determination by a person who was not involved in the hearing based upon the original hearing record and the report of the Hearing Officer (see, County Law § 401 [1], [2]). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Jefferson County, Gilbert, J.) Present — Green, J. P., Wisner, Hurl-butt and Burns, JJ.