Alvarez v. Kelly

2 A.D.3d 219, 768 N.Y.S.2d 315, 2003 N.Y. App. Div. LEXIS 13191

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 2003
• Status: Published

Opinion

Determination of respondent Folice Commissioner, dated January 31, 2002, dismissing petitioner from his position as a police officer upon findings that he made a false 911 call of a burglary in progress while off duty and made false statements concerning the call in his departmental interview, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [James Yates, J], entered November 21, 2002) dismissed, without costs.

Substantial evidence, including the unchallenged testimony of telephone technology experts, establishes that the 911 call that petitioner made concerning a burglary in progress at a public school in Brooklyn was made from a pay phone in upper Manhattan, and not, as petitioner claims, from his cell phone as he drove past the school on his way home from his Brooklyn station house. No basis exists to disturb respondent’s findings of credibility (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]). The penalty of dismissal does not shock our sense of fairness (see Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]). Concur—Nardelli, J.P., Tom, Mazzarelli and Ellerin, JJ.