Felski v. Larson

139 A.D.2d 967, 527 N.Y.S.2d 1018, 1988 N.Y. App. Div. LEXIS 4203

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 1988
• Status: Published

Opinion

— Determination unanimously confirmed and petition dismissed without costs. Memorandum: In this CPLR article 78 proceeding, petitioner seeks annulment of the determination by respondent dismissing him from his position of Superintendent of Maintenance and Inspection of the City of Batavia after a hearing conducted pursuant to section 75 of the Civil Service Law. Twenty-seven specifications alleging misconduct were filed against petitioner; he was found guilty of 20 specifications in whole and portions of 3 specifications. There is substantial evidence in the record to support these findings (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176), except those related to specifications numbered 2, 4, 8, 15, 20, 23, and 24. Especially, there is substantial evidence in the record that respondent gave repeated directions to petitioner to perform specific duties which he ignored.

Petitioner’s conduct over a period of many months demonstrated a "persistent unwillingness to accept the directives of his superiors” (Matter of Short v Nassau County Civ. Serv. Commn., 45 NY2d 721, 723; Matter of Di Vito v State of New York 48 NY2d 761). Consequently, the penalty of dismissal, in the circumstances of this case, is 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, 233). (Article 78 proceeding transferred by order of Supreme Court, Genesee County, Graney, J.) Present — Denman, J. P., Boomer, Green, Lawton and Davis, JJ.