Carlton v. Schembri

235 A.D.2d 306, 652 N.Y.S.2d 957, 1997 N.Y. App. Div. LEXIS 569

Opinion

Determination of respondent Correction Commissioner dated September 23, 1994, which dismissed petitioner from his position as a correction officer, 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 [Joan Lobis, J.], entered May 25, 1995) is dismissed, without costs.

The Administrative Law Judge properly reinstated the hearing after initially dismissing the charges from the calendar without prejudice once respondent demonstrated that a previously unavailable key witness was now available to testify and provided the necessary discovery materials. The penalty of dismissal does not shock our conscience despite petitioner’s otherwise unblemished, even exemplary, record (cf., Matter of Seelig v Koehler, 76 NY2d 87, 93-94). Concur—Murphy, P. J., Rosenberger, Ellerin and Wallach, JJ.