Agugliaro v. Commissioner of the Department of Transportation

Appellate Division of the Supreme Court of New York

Agugliaro v. Commissioner of the Department of Transportation

135 A.D.2d 711, 522 N.Y.S.2d 611, 1987 N.Y. App. Div. LEXIS 52649

Appellate Division of the Supreme Court of the State of New York·Decided December 21, 1987·Published·Cited by 3 cases

Opinion

— Proceeding pursuant to CPLR article 78 to review a determination of the respondent, dated August 28, 1985, which, after a hearing, found the petitioner guilty of certain acts of official misconduct and incompetency and imposed a penalty.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

Upon review of the extensive hearing record, we find that there is substantial evidence to support the determination of guilt with respect to the subject disciplinary charges against the petitioner (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). We also conclude that the penalty imposed, which involved a demotion in grade and title as well as reassignment to another facility, was not so disproportionate to the charges sustained as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222; Civil Service Law § 75 [3]). Finally, we note that the fact that Assistant Commissioner Luz B. Allende signed the statement of charges against the petitioner, without more, did not mandate that she disqualify herself from reviewing the findings and recommendations of the Hearing Officer (cf., Matter of Cafaro v Pedersen, 123 AD2d 860; Matter of Edgar v Dowling, 96 AD2d 510; Matter of O’Reilly v Pisani, 79 AD2d 973).

The petitioner’s renewed application to strike portions of the record is denied. Mangano, J. P., Thompson, Kunzeman and Harwood, JJ., concur.

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— Proceeding pursuant to CPLR article 78 to review a determination of the respondent, dated August 28, 1985, which, after a hearing, found the petitioner guilty of certain acts of official misconduct and incompetency and imposed a penalty.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

Upon review of the extensive hearing record, we find that there is substantial evidence to support the determination of guilt with respect to the subject disciplinary charges against the petitioner (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). We also conclude that the penalty imposed, which involved a demotion in grade and title as well as reassignment to another facility, was not so disproportionate to the charges sustained as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222; Civil Service Law § 75 [3]). Finally, we note that the fact that Assistant Commissioner Luz B. Allende signed the statement of charges against the petitioner, without more, did not mandate that she disqualify herself from reviewing the findings and recommendations of the Hearing Officer (cf., Matter of Cafaro v Pedersen, 123 AD2d 860; Matter of Edgar v Dowling, 96 AD2d 510; Matter of O’Reilly v Pisani, 79 AD2d 973).

The petitioner’s renewed application to strike portions of the record is denied. Mangano, J. P., Thompson, Kunzeman and Harwood, JJ., concur.

Agugliaro v. Commissioner of the Department of Transportation, 135 A.D.2d 711, 522 N.Y.S.2d 611, 1987 N.Y. App. Div. LEXIS 52649 (N.Y. Ct. App. 1987).

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