Bocek v. Lauro

104 A.D.3d 940

960 N.Y.S.2d 913

2013 N.Y. Slip Op. 02071

In the Matter of John BOCEK, petitioner,

v.Thomas J. LAURO, etc., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

March 27, 2013.

James M. Rose, White Plains, N.Y., for petitioner.

Robert F. Meehan, County Attorney, White Plains, N.Y. (James Castro–Blanco and Thomas G. Gardiner of counsel), for respondents.

Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the Department of Environmental Facilities of Westchester County dated January 6, 2012, which adopted the report and recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law article 75, finding the petitioner guilty of certain disciplinary charges, and terminated the petitioner's employment.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

The standard of review of an administrative determination “made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law” is whether the determination is supported by substantial evidence (CPLR 7803 [4]; see Matter of Lahey v. Kelly, 71 N.Y.2d 135, 140, 524 N.Y.S.2d 30, 518 N.E.2d 924;300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179–180, 408 N.Y.S.2d 54, 379 N.E.2d 1183;Matter of Barthel v. Town of Huntington, 97 A.D.3d 814, 814–815, 949 N.Y.S.2d 112;Matter of Rabidou v. County of Dutchess, 94 A.D.3d 1004, 1004, 942 N.Y.S.2d 365). Here, substantial evidence in the record supports the determination that the petitioner was guilty of the subject disciplinary charges.

We reject the petitioner's contention that the penalty of termination of his employment is so disproportionate to the offense as to be shocking to one's sense of fairness ( see Matter of Perez v. Rhea, 20 N.Y.3d 399, 405–06, 960 N.Y.S.2d 727, 984 N.E.2d 925 [2013];Matter of Torrance v. Stout, 9 N.Y.3d 1022, 852 N.Y.S.2d 8, 881 N.E.2d 1194;Matter of Barthel v. Town of Huntington, 97 A.D.3d at 815, 949 N.Y.S.2d 112). To the extent that the petitioner's contention is premised on his interpretation of the evidence, we note that the factfinder explicitly rejected that interpretation.

BALKIN, J.P., CHAMBERS, ROMAN and HINDS–RADIX, JJ., concur.