DiCairano v. Gandolfo

201 A.D.2d 727, 609 N.Y.S.2d 619, 1994 N.Y. App. Div. LEXIS 1651

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1994
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Trustees of the Village of North Tarry-town, dated March 12, 1991, which, after a hearing, found the petitioner guilty of violating sections 141, 168, and 169 of the Rules and Regulations of the Police Department of the Village of North Tarrytown, and dismissed him from the Police Department.

Adjudged that the determination is confirmed and the petition is dismissed on the merits, with costs.

It is well settled that in a proceeding pursuant to CPLR article 78 to review a determination of an administrative board, the board’s decision must be upheld if it is based on substantial evidence (see, Matter of Berenhaus v Ward, 70 NY2d 436). "Substantial evidence is such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (Matter of Hal v Del Castillo, 174 AD2d 743; see, Matter of Berenhaus v Ward, supra). Here, we find that the board’s determination was based upon substantial evidence.

We further find that under the circumstances, including the petitioner’s prior recent conduct which was the subject of disciplinary action (Matter of DiCairano v Gandolfo, 201 AD2d 728 [decided herewith]), that the penalty imposed was not 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, 234; Matter of Hickey v Bratton, 180 AD2d 682).

We have reviewed the petitioner’s remaining contentions and find them to be without merit. Thompson, J. P., Rosenblatt, Miller and Ritter, JJ., concur.