Esposito v. Spooner

203 A.D.2d 978, 612 N.Y.S.2d 93

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1994
• Status: Published

Opinion

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner, a police officer employed by the Village of Southampton, commenced this proceeding pursuant to CPLR article 78 to annul a determination by respondent Village Board of Trustees that, after a hearing held in accordance with Civil Service Law § 75, found petitioner guilty of incompetency and misconduct, and demoted him from the rank of sergeant to patrolman in the Village Police Department. This matter has been transferred to the Appellate Division by order of Supreme Court, Suffolk County. We agree with Supreme Court that the proceeding was commenced timely. Thus, respondents’ affirmative defense was properly dismissed.

Upon our review of the record, we conclude that there is substantial evidence to support respondents’ determination that petitioner was guilty of incompetency and misconduct (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). The penalty of demotion is not so disproportionate to the offenses to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233). Although petitioner has served as a police officer for the Village for over 17 years, it is apparent that respondents took that fact into consideration in rejecting the recommendation of the Hearing Officer that petitioner be dismissed from the police force and opted for the lesser penalty of demotion. (Article 78 Proceeding Transferred by Order of Supreme Court, Suffolk County, Baisley, J.) Present — Denman, P. J., Pine, Lawton, Callahan and Davis, JJ.