DiMattina v. LaBua

Appellate Division of the Supreme Court of New York

DiMattina v. LaBua

262 A.D.2d 409, 692 N.Y.S.2d 410, 1999 N.Y. App. Div. LEXIS 6381

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

DecidedJune 7, 1999

StatusPublished

Cited by5 cases

This text of 262 A.D.2d 409 (DiMattina v. LaBua) 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

DiMattina v. LaBua, 262 A.D.2d 409, 692 N.Y.S.2d 410, 1999 N.Y. App. Div. LEXIS 6381 (N.Y. Ct. App. 1999).

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Opinion

—Proceed[410]*410ing pursuant to CPLR article 78 to review a determination of the respondent Deputy Director of the Department of General Services for the Town of Huntington dated January 13, 1997, which, after a hearing, found the petitioner guilty of four charges of misconduct and imposed the penalty of dismissal.

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

The record contains substantial evidence supporting the determination of the Deputy Director of the Department of General Services for the Town of Huntington that the petitioner wrongfully obtained and withheld Town-owned lumber, wrongfully obtained and withheld Town-owned tools and equipment, abused his authority, and improperly influenced subordinate Town employees with respect to political activities (see, Matter of Pell v Board of Educ., 34 NY2d 222, 231; Matter of Conte v Koehler, 176 AD2d 507, 508).

Furthermore, it is well settled that when an officer institutes charges of misconduct and testifies at an ensuing hearing, that officer, in the interest of fairness, must disqualify herself from reviewing the Hearing Officer’s recommendations and rendering a final determination (see, Matter of Martin v Platt, 191 AD2d 758; Matter of Hicks v Fortier, 117 AD2d 930). Here, the Director of the Department of General Services for the Town of Huntington preferred the charges against the petitioner and testified at the subsequent disciplinary hearing. Thus, he properly disqualified himself from reviewing the recommendations of the Hearing Officer and acting on any of the charges. In addition, since the Deputy Director is authorized to act generally in the Director’s absence pursuant to local law (see, Code of Town of Huntington § 32-1 [B]), the Deputy Director was properly designated to render a final determination.

The petitioner’s remaining contentions are without merit. Ritter, J. P., Joy, Goldstein and Schmidt, JJ., concur.

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—Proceed[410]*410ing pursuant to CPLR article 78 to review a determination of the respondent Deputy Director of the Department of General Services for the Town of Huntington dated January 13, 1997, which, after a hearing, found the petitioner guilty of four charges of misconduct and imposed the penalty of dismissal.

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

The record contains substantial evidence supporting the determination of the Deputy Director of the Department of General Services for the Town of Huntington that the petitioner wrongfully obtained and withheld Town-owned lumber, wrongfully obtained and withheld Town-owned tools and equipment, abused his authority, and improperly influenced subordinate Town employees with respect to political activities (see, Matter of Pell v Board of Educ., 34 NY2d 222, 231; Matter of Conte v Koehler, 176 AD2d 507, 508).

Furthermore, it is well settled that when an officer institutes charges of misconduct and testifies at an ensuing hearing, that officer, in the interest of fairness, must disqualify herself from reviewing the Hearing Officer’s recommendations and rendering a final determination (see, Matter of Martin v Platt, 191 AD2d 758; Matter of Hicks v Fortier, 117 AD2d 930). Here, the Director of the Department of General Services for the Town of Huntington preferred the charges against the petitioner and testified at the subsequent disciplinary hearing. Thus, he properly disqualified himself from reviewing the recommendations of the Hearing Officer and acting on any of the charges. In addition, since the Deputy Director is authorized to act generally in the Director’s absence pursuant to local law (see, Code of Town of Huntington § 32-1 [B]), the Deputy Director was properly designated to render a final determination.

The petitioner’s remaining contentions are without merit. Ritter, J. P., Joy, Goldstein and Schmidt, JJ., concur.

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Bluebook (online)

262 A.D.2d 409, 692 N.Y.S.2d 410, 1999 N.Y. App. Div. LEXIS 6381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dimattina-v-labua-nyappdiv-1999.

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