ALBANY, N.Y. (AP) – A judge has ordered former New York Stock Exchange chief Richard Grasso to pay back tens of millions of dollars from the compensation package that Attorney General Spitzer has labeled excessive, a spokesman for Mr. Spitzer said Thursday.

The trial level judge, who issued a partial summary judgment against Mr. Grasso, will decide separately how much he should repay from the $187.5 million compensation package and dismissed his claim for another $48 million from the exchange, said Mr. Spitzer’s spokesman Darren Dopp.

Mr. Spitzer has been trying to recover some of the $187.5 million pay package Mr. Grasso received in 2003. An internal NYSE review known as the Webb report claimed up to $156.7 million of the pay package was excessive compared to most American corporations.

Mr. Grasso has argued the exchange’s officers were aware of the package when it was approved.

The 72-page decision by state Supreme Court Justice Charles Ramos dated Wednesday said Mr. Grasso didn’t fully disclose his growing compensation from his Supplemental Executive Retirement Plan. A SERP is an extra retirement fund many companies maintain for their executives.

Mr. Grasso’s attorney, Gerson A. Zweifach of Washington, didn’t immediately respond to a request for comment. The decision could be appealed.

Justice Ramos stated that he “must agree with Mr. Grasso that is impossible for the court to determine on this motion what Mr. Grasso actually knew about what the board members knew. But summary judgment is not granted on the basis of his actual knowledge. Mr. Grasso’s duty is to be fully informed and to see to it that the board was fully informed. He failed in this duty.”

“There is no dispute that Mr. Grasso had a fiduciary duty,” Justice Ramos stated. “Rather, the question is whether his duty included disclosure of the magnitude of his SERP benefits. It did.”

The decision states Mr. Grasso’s SERP of $36 million in 1999 grew to more than $100 million in less than three years.

“Mr. Grasso’s failure to disclose the amount of the SERP thwarted the (NYSE) Compensation Committee from performing its duty of care and obedience,” Justice Ramos stated. “Year after year, it made decisions to pay him without knowing his true compensation.”

Justice Ramos continued: “Many members of the (NYSE) board testified that they did not know about the SERP and if they did, they did not know what the balance was.

“This court also finds this affirmative defense of neglect to be shocking,” Justice Ramos wrote. “That a fiduciary of any institution, profit or not-for-profit, could honestly admit that he was unaware of a liability of over $100 million, or even over $36 million, is a clear violation of the duty of care. The fact that it was a liability to an insider (chairman and CEO) is even more shocking.”

Mr. Spitzer, who is running for governor in New York, has been criticized by some Republicans for continuing the lengthy case against Mr. Grasso, arguing a private organization should be able to pay an executive whatever it wants. But Mr. Spitzer has said the exchange was subject to nonprofit organization laws that prohibit excessive payments and that some exchange officials were misled about the size of the compensation.

The exchange is bound by a rule that allows only reasonable compensation. The attorney general’s duties includes regulating nonprofit organizations. A trial had been expected to begin later this fall.

Mr. Spitzer has said any return of Mr. Grasso’s compensation will be used to help fund a stock exchange program that educates investors.