Carson v. New York City Housing Authority

25 A.D.3d 462, 808 N.Y.S.2d 659

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 2006
• Status: Published

Opinion

Determination of respondent New York City Housing Authority, after a hearing, dismissing petitioner from her position as a caretaker upon a finding that she improperly used and/or possessed marijuana while at work, in violation of respondent’s Personnel Rules and Regulations, chapter I, rule XII, section B (1) (b), 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 [Lewis Bart Stone, J.], entered May 9, 2005) dismissed, without costs.

The finding of marijuana use and/or possession is supported by substantial evidence, namely, the testimony of the arresting officer that he smelled marijuana in the stairwell just before seeing petitioner, saw a marijuana cigarette being passed to petitioner, saw petitioner throw the marijuana cigarette to the ground and cover it with her foot, immediately recovered the marijuana cigarette from the floor when petitioner moved her foot, and that a bag of marijuana was recovered from petitioner’s person. No basis exists to disturb the hearing officer’s findings of credibility (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]). Although the officer was unable to identify petitioner at the hearing, petitioner never denied that she was the woman arrested by the officer. The penalty of dismissal does not shock our sense of fairness (see Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]). We have reviewed petitioner’s remaining contentions and find them unavailing. Concur—Andrias, J.P., Saxe, Friedman, Gonzalez and Catterson, JJ.