Tinter v. Bd. of Trs. of the Pound Ridge Library Dist.

203 A.D.3d 1163

166 N.Y.S.3d 241

In the Matter of Marilyn TINTER, appellant,

v.BOARD OF TRUSTEES OF the POUND RIDGE LIBRARY DISTRICT, et al., respondents.

2019–02141

Index No. 54527/18

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

Argued—January 18, 2022

March 30, 2022

Meyers Tersigni Feldman & Gray LLP, Purchase, NY (Anthony L. Tersigni and Andrea Tersigni of counsel), for appellant.

Rivkin Radler LLP, Uniondale, NY (William M. Savino, Stephen J. Smirti, Jr., and M. Paul Gorfinkel of counsel), for respondents.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the Pound Ridge Library District dated February 6, 2018, which demoted the petitioner from her position as the Director of the Pound Ridge Library to the position of Librarian I, effective September 26, 2016, the petitioner appeals from a judgment of the Supreme Court, Westchester County (George E. Fufidio, Jr., J.), dated January 16, 2019. The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

The petitioner commenced a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the Pound Ridge Library District (hereinafter the Board) dated September 26, 2016, which adopted the recommendation of a Hearing Officer, made after a hearing, finding the petitioner guilty of certain charges of misconduct and incompetence, and terminated her employment as the Director of the Pound Ridge Library. In an order dated April 3, 2017, the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g). In a decision and judgment dated November 29, 2017, this Court, inter alia, granted the petition to the extent of annulling so much of the determination as found the petitioner guilty of certain charges and specifications, dismissed those charges and specifications, vacated the penalty imposed, and remitted the matter to the Board for a new consideration of the appropriate penalty to be imposed (see Matter of Tinter v. Board of Trustees of the Pound Ridge Lib. Dist., 155 A.D.3d 1054, 66 N.Y.S.3d 526 ). Upon remittitur, at an executive meeting on December 3, 2017, the Board voted to impose the penalty of demotion to the position of Librarian I, effective September 26, 2016. Thereafter, on February 6, 2018, the Board voted to ratify its December 3, 2017 determination. The petitioner commenced this proceeding to review the Board's determination dated February 6, 2018, and the Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.

The petitioner's contention that the penalty imposed was unlawful since it was based on alleged misconduct with which she had not been charged and/or charges that were dismissed by this Court is without merit, as it based upon mere speculation and is otherwise not supported by the record. Moreover, contrary to the petitioner's contention, the record fails to raise any issues of fact material to the Board's determination which required a trial (see CPLR 7804[h] ).

"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" ( Matter of Kreisler v. New York City Tr. Auth., 2 N.Y.3d 775, 776, 780 N.Y.S.2d 302, 812 N.E.2d 1250 [alterations omitted], quoting Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 237, 356 N.Y.S.2d 833, 313 N.E.2d 321 ; see Matter of Sekul v. City of Poughkeepsie, 195 A.D.3d 622, 625, 149 N.Y.S.3d 508 ). Here, this Court previously determined that substantial evidence supported the Board's determination that the petitioner was guilty of certain misconduct and incompetence relating to the petitioner's being untruthful in...