Di Vito v. State of New York

Appellate Division of the Supreme Court of New York

Di Vito v. State of New York

64 A.D.2d 867, 407 N.Y.S.2d 368, 1978 N.Y. App. Div. LEXIS 12727

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

DecidedJuly 13, 1978

StatusPublished

Cited by2 cases

This text of 64 A.D.2d 867 (Di Vito v. State of New York) 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

Di Vito v. State of New York, 64 A.D.2d 867, 407 N.Y.S.2d 368, 1978 N.Y. App. Div. LEXIS 12727 (N.Y. Ct. App. 1978).

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Opinion

—Judgment unanimously reversed, without costs, petition dismissed and determination confirmed. Den-man, J., not participating. Memorandum: After a hearing pursuant to section 75 of the Civil Service Law petitioner was found guilty of insubordination and demoted from his position of employment service manager in the Buffalo district of the Manpower Services Division to a nonmanagerial position. The demotion resulted in a substantial loss in salary. Although apparently finding substantial evidence to support the charge of misconduct, Special Term held the penalty too severe and ordered petitioner reinstated with back pay. The evidence is uncontradicted that petitioner was ordered to apologize to his subordinates for his improper behavior in berating them during a dispute over damaged property, that he was given several opportunities to comply with the order of his superiors or to contest it and that he knowingly refused to do either. His conduct casts serious doubt over his ability to hold a managerial position at the present time. Under all the circumstances and evidence in the record, the penalty of demotion, while severe, does not shock our conscience (Matter of Pell v Board of Educ., 34 NY2d 222). (Appeal from judgment of Erie Supreme Court—art 78.) Present —Cardamone, J. P., Simons, Hancock, Jr., Denman and Witmer, JJ.

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—Judgment unanimously reversed, without costs, petition dismissed and determination confirmed. Den-man, J., not participating. Memorandum: After a hearing pursuant to section 75 of the Civil Service Law petitioner was found guilty of insubordination and demoted from his position of employment service manager in the Buffalo district of the Manpower Services Division to a nonmanagerial position. The demotion resulted in a substantial loss in salary. Although apparently finding substantial evidence to support the charge of misconduct, Special Term held the penalty too severe and ordered petitioner reinstated with back pay. The evidence is uncontradicted that petitioner was ordered to apologize to his subordinates for his improper behavior in berating them during a dispute over damaged property, that he was given several opportunities to comply with the order of his superiors or to contest it and that he knowingly refused to do either. His conduct casts serious doubt over his ability to hold a managerial position at the present time. Under all the circumstances and evidence in the record, the penalty of demotion, while severe, does not shock our conscience (Matter of Pell v Board of Educ., 34 NY2d 222). (Appeal from judgment of Erie Supreme Court—art 78.) Present —Cardamone, J. P., Simons, Hancock, Jr., Denman and Witmer, JJ.

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Bluebook (online)

64 A.D.2d 867, 407 N.Y.S.2d 368, 1978 N.Y. App. Div. LEXIS 12727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/di-vito-v-state-of-new-york-nyappdiv-1978.

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