Auer v. Village of Westbury 202 A.D.2d 1059, 609 N.Y.S.2d 133

—Determination unanimously annulled on the law without costs and petition granted. Memorandum: Petitioner commenced this CPLR arti*1060cle 78 proceeding to annul a determination of respondent, Village of Westbury, that, after a hearing, found petitioner guilty of misconduct for abuse of sick leave and suspended him from work for a period of 30 days without pay. Petitioner has been employed by respondent as a sanitation worker since November 19, 1987. Under the collective bargaining agreement between respondent and its employees, an employee is entitled to one sick day per month. The fact that petitioner used all of his sick days does not, ipso facto, establish that he was abusing his sick leave. Petitioner testified that on each occasion when he called in sick from July 13, 1990 through December 12, 1991, he was actually sick. Respondent introduced no evidence that petitioner was not in fact sick on any of those days. Because respondent’s determination is not supported by substantial evidence, it must be annulled (see, Matter of Drayton v Hasl, 121 AD2d 631, 632). (Article 78 Proceeding Transferred by Order of Supreme Court, Nassau County, Kohn, J.) Present — Denman, P. J., Pine, Lawton, Callahan and Davis, JJ.