Bigando v. Schreiber

Appellate Division of the Supreme Court of New York

Bigando v. Schreiber

124 A.D.2d 878, 508 N.Y.S.2d 646, 1986 N.Y. App. Div. LEXIS 62211

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 13, 1986

StatusPublished

This text of 124 A.D.2d 878 (Bigando v. Schreiber) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bigando v. Schreiber, 124 A.D.2d 878, 508 N.Y.S.2d 646, 1986 N.Y. App. Div. LEXIS 62211 (N.Y. Ct. App. 1986).

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Opinion

Petitioner, a volunteer fireman, was found guilty of leaving his assigned post without permission. On the evening of November 23, 1985, petitioner and two other members of the Union Hose Company were on standby duty at the company headquarters. The dispatcher testified that at 1:38 a.m. on November 24, 1985, he received a call from petitioner stating that he and his men were leaving the station. Petitioner testified that he told the dispatcher that the other two members were leaving the station and that, therefore, there was insufficient manpower at the station to respond to any calls. Petitioner testified that he did not leave the station until some 45 minutes later, after taps.

Petitioner contends that in view of his testimony that he did not leave the station until after taps, respondents’ finding that he left the station at about 1:38 a.m. is not supported by [879]*879substantial evidence in the absence of some direct proof that he left the station at that time. As the administrative fact finder, however, respondents could accept the testimony of the dispatcher as to his conversation with petitioner and draw whatever inference could fairly be drawn from that testimony (see, Matter of Di Maria v Ross, 52 NY2d 771). In our view, there is nothing irrational in respondents’ conclusion that petitioner left the station at or about the time he told the dispatcher that he and his men were leaving. Respondents’ amended determination contains the necessary findings of fact that petitioner claims were lacking in the initial determination.

Petitioner was suspended for six months and placed on probation for six months, and he was prohibited from holding any position as company line officer for a period of two years. We reject petitioner’s claim that the latter prohibition constitutes an impermissible suspension beyond the one-year time limit fixed by General Municipal Law § 209-l. Petitioner was suspended for only six months; the two-year prohibition affects only his rank or grade.

The determination should be confirmed and the petition dismissed.

Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.

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Petitioner, a volunteer fireman, was found guilty of leaving his assigned post without permission. On the evening of November 23, 1985, petitioner and two other members of the Union Hose Company were on standby duty at the company headquarters. The dispatcher testified that at 1:38 a.m. on November 24, 1985, he received a call from petitioner stating that he and his men were leaving the station. Petitioner testified that he told the dispatcher that the other two members were leaving the station and that, therefore, there was insufficient manpower at the station to respond to any calls. Petitioner testified that he did not leave the station until some 45 minutes later, after taps.

Petitioner contends that in view of his testimony that he did not leave the station until after taps, respondents’ finding that he left the station at about 1:38 a.m. is not supported by [879]*879substantial evidence in the absence of some direct proof that he left the station at that time. As the administrative fact finder, however, respondents could accept the testimony of the dispatcher as to his conversation with petitioner and draw whatever inference could fairly be drawn from that testimony (see, Matter of Di Maria v Ross, 52 NY2d 771). In our view, there is nothing irrational in respondents’ conclusion that petitioner left the station at or about the time he told the dispatcher that he and his men were leaving. Respondents’ amended determination contains the necessary findings of fact that petitioner claims were lacking in the initial determination.

Petitioner was suspended for six months and placed on probation for six months, and he was prohibited from holding any position as company line officer for a period of two years. We reject petitioner’s claim that the latter prohibition constitutes an impermissible suspension beyond the one-year time limit fixed by General Municipal Law § 209-l. Petitioner was suspended for only six months; the two-year prohibition affects only his rank or grade.

The determination should be confirmed and the petition dismissed.

Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.

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124 A.D.2d 878, 508 N.Y.S.2d 646, 1986 N.Y. App. Div. LEXIS 62211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bigando-v-schreiber-nyappdiv-1986.

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