Denis v. Department of Public Works

177 A.D.2d 749, 576 N.Y.S.2d 58, 1991 N.Y. App. Div. LEXIS 14357

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1991
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Saratoga County) to review a determination of respondent Saratoga County Commissioner of Public Works which suspended petitioner’s employment as a maintenance person for two weeks.

There is substantial evidence in the record to support the conclusion that petitioner failed to obey a direct order and that he was, therefore, guilty of misconduct (see, Matter of Berenhaus v Ward, 70 NY2d 436, 443; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180). The evidence reveals that, despite being asked on three separate occasions, petitioner failed to follow his supervisor’s instructions to remove his personal property from the coffee room in one building to either the newly designated coffee room in a separate building or off of the premises entirely. To the extent that the testimony was conflicting, a question of credibility was presented for the Hearing Officer to resolve (see, Matter of Berenhaus v Ward, supra, at 443-444; Price Chopper Operating Co. v New York State Liq. Auth., 152 AD2d 809, 810). Finally, we do not find that petitioner’s penalty of a two-week suspension without pay is " ' "so disproportionate to the offense * * * as to be shocking to one’s sense of fairness” ’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233, quoting Matter of Stolz v Board of Regents, 4 AD2d 361).

Mahoney, P. J., Casey, Mikoll, Mercure and Crew III, JJ., concur. Adjudged that the determination is confirmed, and petition dismissed, without costs.