Kelly v. Cnty. of Dutchess

176 A.D.3d 1060

111 N.Y.S.3d 51

In the Matter of James KELLY, Petitioner,

v.COUNTY OF DUTCHESS, et al., Respondents.

2017–00717

Index No. 3676/15

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

Submitted—April 15, 2019

October 23, 2019

O'Neil & Burke, LLP, Poughkeepsie, N.Y. (William T. Burke of counsel), for petitioner.

James M. Fedorchak, County Attorney, Poughkeepsie, N.Y. (Caroline E. Blackburn of counsel), for respondents.

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, BETSY BARROS, ANGELA G. IANNACCI, JJ.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the Dutchess County Department of Emergency Response, dated July 15, 2015. The determination adopted the findings of a hearing officer dated July 14, 2015, made after a hearing pursuant to Civil Service Law § 75, that the petitioner was guilty of certain charges of misconduct and/or incompetence, and terminated the petitioner's employment as a public safety dispatcher.

ADJUDGED that the petition is granted, on the law, without costs or disbursements, to the extent that so much of the determination as found the petitioner guilty of specifications 3 and 4 of charge II and specification 6 of supplemental charge VII is annulled, those specifications are dismissed, the penalty imposed is vacated, the determination is otherwise confirmed, and the matter is remitted to the respondents for a new consideration of the appropriate penalty to be imposed in accordance herewith, and the imposition of such a penalty thereafter.

The petitioner was employed by the respondent Dutchess County Department of Emergency Response (hereinafter the Department) as a public safety dispatcher in the 911 dispatch center. The petitioner was initially charged with misconduct and/or incompetence in connection with his handling of two requests for assistance. Charge I, which consisted of six specifications, alleged misconduct and/or incompetence in connection with the petitioner's handling of a request for assistance on July 26, 2014. Charge II, which consisted of five specifications, alleged misconduct and/or incompetence in connection with the petitioner's handling of a request for assistance on August 12, 2014. The charges alleged, among other things, that the petitioner was discourteous to callers, failed to transfer calls to the local police department, and hung up on a caller.

At an administrative hearing held on December 15, 2014, Linda Mihans, the Department's EMS coordinator, who previously had been in charge of the quality improvement program with the dispatch center, testified, and recordings of the two calls for assistance forming the bases of charges I and II were played and admitted into evidence. The petitioner denied the charges against him and testified that, aside from the two calls forming the bases of charges I and II, he had never hung up on callers or yelled at callers.

Thereafter, the Department directed a further investigation into the petitioner's handling of other 911 calls, and it produced seven additional calls where the petitioner's actions allegedly constituted misconduct. By letter dated February 23, 2015, the Department brought seven supplemental charges against the petitioner, each consisting of multiple specifications, arising from the seven additional calls. Additional hearings were held on March 16, 2015, March 24, 2015, and April 7, 2015, during which time Mihans testified again and recordings of the seven phone calls forming the bases of the supplemental charges were admitted into evidence. The hearing officer found the petitioner guilty of specifications 5 and 6, as well as a portion of specification 4, of charge I; specifications 3, 4, and 5 of charge II; specification 4 of supplemental charge II; specification 4 of supplemental charge III; specification 4 of supplemental charge IV; specifications 4 and 5 of supplemental charge V; specification 4 of supplemental charge VI; and specification 4, as well as a portion of specification 6, of supplemental charge VII. The hearing officer recommended termination of the petitioner's employment given "the number and extent of his instances of misconduct and/or incompetence" demonstrating that he is "not a reliable or responsible 9–1–1 dispatcher." The Department adopted the hearing officer's report and recommendation, and terminated the petitioner's employment.

The petitioner thereafter commenced this proceeding pursuant to CPLR article 78 to review the Department's determination, and the Supreme Court transferred the matter to this Court pursuant to CPLR 7804(g).

In a CPLR article 78 proceeding involving employee discipline, judicial review of a determination made after a hearing pursuant to Civil Service Law § 75 is limited to consideration of whether that determination was supported by substantial evidence (see CPLR 7803[4] ; 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 Thomas v. Town of Southeast, N.Y., 168 A.D.3d 955, 956–957, 93 N.Y.S.3d 72 ; Matter of Owens v. County of Dutchess, 162 A.D.3d 1040, 1041, 80 N.Y.S.3d 350 ; Matter of Harris v. City of Poughkeepsie, 162 A.D.3d 663,...