Sullivan v. Cnty. of Rockland

192 A.D.3d 895

140 N.Y.S.3d 748 (Mem)

In the Matter of John SULLIVAN, respondent,

v.COUNTY OF ROCKLAND, et al., appellants.

2019–00694

Index No. 1934/17

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

Argued—December 10, 2020

March 17, 2021

Thomas E. Humbach, County Attorney, New City, N.Y. (Larraine S. Feiden of counsel), for appellants.

Feerick Nugent MacCartney, PLLC, South Nyack, N.Y. (Stephen M. Honan of counsel), for respondent.

WILLIAM F. MASTRO, A.P.J., REINALDO E. RIVERA, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a second notice of redetermination of the Commissioner of the Rockland County Department of Social Services dated August 28, 2017, which, upon a determination of the Commissioner of the Rockland County Department of Social Services dated October 10, 2014, terminating the petitioner's employment, and upon remittitur from this Court by decision and order dated May 3, 2017 ( Matter of Sullivan v. County of Rockland, 150 A.D.3d 743, 55 N.Y.S.3d 252 ), demoted the petitioner from the position of caseworker to social welfare examiner, the County of Rockland, the Rockland County Department of Social Services, and Joan M. Silvestri, as Commissioner of the Rockland County Department of Social Services, appeal from a judgment of the Supreme Court, Rockland County (Sherri L. Eisenpress, J.), dated November 27, 2018. The judgment, insofar as appealed from, granted the petition, annulled the penalty of demotion, imposed a penalty of a 30–day suspension without pay for the sustained charge, directed that the petitioner be restored to his prior position of caseworker, and remitted the matter to the Rockland County Department of Social Services to calculate back salary and lost compensation owed to the petitioner.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof imposing a penalty of a 30–day suspension without pay; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the County of Rockland, the Rockland County Department of Social Services, and Joan M. Silvestri, as Commissioner of the Rockland County Department of Social Services for further proceedings in accordance herewith.

The petitioner was a caseworker with the County of Rockland Department of Social Services (hereinafter DSS). After a disciplinary hearing, the petitioner was found guilty of gross misconduct-falsification of business records, and was terminated from his employment. Following a decision and order of this Court dated May 3, 2017, affirming a judgment granting the petitioner's petition pursuant to CPLR article 78 to review the penalty imposed, and remitting the matter for the imposition of a lesser penalty ( Matter of Sullivan v. County of Rockland, 150 A.D.3d 743, 55 N.Y.S.3d 252 ), the petitioner was demoted from his position as caseworker to the position of social welfare examiner. The petitioner sought review of that new penalty. In the judgment appealed from, the Supreme Court, inter alia, struck the penalty of demotion, imposed a penalty of a 30–day suspension without pay, directed that the petitioner be restored to his prior position of caseworker, and remitted the matter to the DSS to calculate back salary and lost compensation owed to the petitioner. The County, the DSS, and the DSS's Commissioner (hereinafter collectively the appellants) appeal.

An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law (see Matter of Waldren v. Town of Islip, 6 N.Y.3d 735, 810 N.Y.S.2d 408, 843 N.E.2d 1148 ; Matter of Kreisler v. New York City Tr. Auth., 2 N.Y.3d 775, 780 N.Y.S.2d 302, 812 N.E.2d 1250 ; Matter of Harp v. New York City Police Dept., 96 N.Y.2d 892, 894, 730 N.Y.S.2d 786, 756 N.E.2d 74 ; Matter of Anderson v. Board of Educ. of the Oyster Bay–E. Norwich Cent. Sch. Dist., 186 A.D.3d 597, 129 N.Y.S.3d 443 ). An administrative penalty is shocking to one's sense of fairness...