Colby v. Siebert

134 A.D.2d 929, 522 N.Y.S.2d 77, 1987 N.Y. App. Div. LEXIS 51134

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1987
• Status: Published

Opinion

— Determination unanimously annulled on the law without costs and matter remitted to respondents for further proceedings, in accordance with the following memorandum: The findings of the Hearing Officer, adopted by the Fire Commissioners, are supported by substantial evidence. Considering petitioner’s persistent conduct and his attitude toward his superior officers culminating in an act of insubordination, and mindful of the deference to be accorded to the judgment of those who must accept responsibility for the operation of the Fire Department, we cannot say that the penalty of dismissal shocks our sense of fairness (see, Matter of Koch v Webster Cent. School Dist. Bd. of Educ., 89 AD2d 778, 779, affd 57 NY2d 1028). Nevertheless, "as a matter of propriety and because of his personal involvement” Commissioner Richard Siebert "should have disqualified himself from acting with respect to the charges” (Matter of Edgar v Dowling, 96 AD2d 510, 511; see also, Matter of Pollett v McGourty, 111 AD2d 1023; Matter of Devany v Rice, 84 AD2d 565; Matter of Sander v Owens, 82 AD2d 968). Accordingly, there should be a de novo determination by the Commissioners, without participation by Commissioner Richard Siebert, based on the original hearing record and the report of the Hearing Officer. (Article 78 proceeding transferred by order of Supreme Court, Monroe County, Tillman, J.) Present — Doerr, J. P., Boomer, Pine, Lawton and Davis, JJ.