Bovino v. Scott

239 N.E.2d 345, 22 N.Y.2d 214, 292 N.Y.S.2d 408, 1968 N.Y. LEXIS 1314

• Court: New York Court of Appeals
• Decided: June 5, 1968
• Status: Published

Opinions

Bergan, J.

Both the Appellate Division and this court are vested with power, pursuant to CPLB, 7803 (subd. 3), to deal as a matter of law with the measure of discipline imposed on a subordinate civil service employee (Matter of Bell v. Waterfront Comm., 20 N Y 2d 54, 63; Matter of Donohue v. New York State Police, 19 N Y 2d 954; Matter of Walker v. Murphy, 15 N Y 2d 650).

The provisions of the Administrative Code of the City of New York (§ 487a-12.0), stating the measure of discipline in alternative terms of dismissal or suspension for 10 days for each offense in the case of charges heard by the Fire Commissioner, yield to the inconsistent provisions of CPLB 7803 (subd. 3) establishing judicial power to review the “ measure ” of “discipline ”. The reduction by the Appellate Division of the punishment to a six months’ suspension is, however, too substantial a revision under the facts in this record.

The order should be modified by reducing the measure of discipline imposed by the respondent Fire Commissioner to a suspension of two years, and, as modified, affirmed, without costs.