Davis v. Safir

Appellate Division of the Supreme Court of New York

Davis v. Safir

262 A.D.2d 107, 691 N.Y.S.2d 487, 1999 N.Y. App. Div. LEXIS 6437

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

DecidedJune 10, 1999

StatusPublished

Cited by1 cases

This text of 262 A.D.2d 107 (Davis v. Safir) 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.

Bluebook

Davis v. Safir, 262 A.D.2d 107, 691 N.Y.S.2d 487, 1999 N.Y. App. Div. LEXIS 6437 (N.Y. Ct. App. 1999).

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Opinion

—Determination of respondent Po[108]*108lice Commissioner dated June 17, 1998, terminating petitioner’s employment as a police 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 [Eileen Bransten, J.], entered, on or about November 17, 1998) dismissed, without costs.

The results of the EMIT and GC/MS tests constitute substantial evidence of petitioner’s possession and use of cocaine, and no basis exists for disturbing respondent’s rejection of petitioner’s claim that the GC/MS testing procedures were unreliable and likely to produce a false positive. In any event, even if the positive result obtained by the GC/MS tests are disregarded, the positive result obtained by the EMIT tests, the reliability of which petitioner does not challenge, would alone constitute substantial evidence of the use of cocaine (Matter of Lahey v Kelly, 71 NY2d 135). The penalty of dismissal does not shock our sense of fairness (Matter of Gordon v Brown, 84 NY2d 574, 580). Concur — Sullivan, J. P., Williams, Wallach, Lerner and Friedman, JJ.

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—Determination of respondent Po[108]*108lice Commissioner dated June 17, 1998, terminating petitioner’s employment as a police 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 [Eileen Bransten, J.], entered, on or about November 17, 1998) dismissed, without costs.

The results of the EMIT and GC/MS tests constitute substantial evidence of petitioner’s possession and use of cocaine, and no basis exists for disturbing respondent’s rejection of petitioner’s claim that the GC/MS testing procedures were unreliable and likely to produce a false positive. In any event, even if the positive result obtained by the GC/MS tests are disregarded, the positive result obtained by the EMIT tests, the reliability of which petitioner does not challenge, would alone constitute substantial evidence of the use of cocaine (Matter of Lahey v Kelly, 71 NY2d 135). The penalty of dismissal does not shock our sense of fairness (Matter of Gordon v Brown, 84 NY2d 574, 580). Concur — Sullivan, J. P., Williams, Wallach, Lerner and Friedman, JJ.

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Bluebook (online)

262 A.D.2d 107, 691 N.Y.S.2d 487, 1999 N.Y. App. Div. LEXIS 6437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-safir-nyappdiv-1999.

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