Cuthbert v. Farrell

Appellate Division of the Supreme Court of New York

Cuthbert v. Farrell

305 A.D.2d 180, 758 N.Y.S.2d 64, 2003 N.Y. App. Div. LEXIS 5237

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

DecidedMay 8, 2003

StatusPublished

Cited by1 cases

This text of 305 A.D.2d 180 (Cuthbert v. Farrell) 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.

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Cuthbert v. Farrell, 305 A.D.2d 180, 758 N.Y.S.2d 64, 2003 N.Y. App. Div. LEXIS 5237 (N.Y. Ct. App. 2003).

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Opinion

Determination of respondent New York City Department of Sanitation Commissioner, dated November 8, 2001, which terminated petitioner’s employment as a sanitation worker, upon findings that he accepted a gratuity and violated respondent’s Trade Waste Directive, 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 [Walter Tolub, J.], entered April 22, 2002) dismissed, without costs.

Respondent’s determination is supported by substantial evidence (see Matter of Pell v Board of Educ., 34 NY2d 222, 231-232 [1974]), including a videotape showing petitioner collecting a five-to-six-foot-high pile of discarded carpeting and other garbage from the front of a two-story house, apparently without obtaining the supervisory permission required by respondent’s Trade Waste Directive in such circumstances; and showing petitioner accepting what reasonably appears to be a gratuity for collecting the unusually large load of garbage. While the videotape and other evidence received at the administrative hearing were in some respects susceptible of interpretations different from those made by the hearing officer, the evidence supporting the administrative determination was nonetheless substantial and, accordingly, the determination may not be judicially disturbed (see Matter of Collins v Codd, 38 NY2d 269, 270 [1976]).

Termination based on the conduct before us is not unfair (see Matter of Pell, 34 NY2d at 233; Cranford v Sexton, 159 AD2d 348, 349 [1990]). Concur — Mazzarelli, J.P., Saxe, Williams, Marlow and Gonzalez, JJ.

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Determination of respondent New York City Department of Sanitation Commissioner, dated November 8, 2001, which terminated petitioner’s employment as a sanitation worker, upon findings that he accepted a gratuity and violated respondent’s Trade Waste Directive, 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 [Walter Tolub, J.], entered April 22, 2002) dismissed, without costs.

Respondent’s determination is supported by substantial evidence (see Matter of Pell v Board of Educ., 34 NY2d 222, 231-232 [1974]), including a videotape showing petitioner collecting a five-to-six-foot-high pile of discarded carpeting and other garbage from the front of a two-story house, apparently without obtaining the supervisory permission required by respondent’s Trade Waste Directive in such circumstances; and showing petitioner accepting what reasonably appears to be a gratuity for collecting the unusually large load of garbage. While the videotape and other evidence received at the administrative hearing were in some respects susceptible of interpretations different from those made by the hearing officer, the evidence supporting the administrative determination was nonetheless substantial and, accordingly, the determination may not be judicially disturbed (see Matter of Collins v Codd, 38 NY2d 269, 270 [1976]).

Termination based on the conduct before us is not unfair (see Matter of Pell, 34 NY2d at 233; Cranford v Sexton, 159 AD2d 348, 349 [1990]). Concur — Mazzarelli, J.P., Saxe, Williams, Marlow and Gonzalez, JJ.

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305 A.D.2d 180, 758 N.Y.S.2d 64, 2003 N.Y. App. Div. LEXIS 5237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cuthbert-v-farrell-nyappdiv-2003.

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