Foster v. Kelly

Appellate Division of the Supreme Court of New York

Foster v. Kelly

55 A.D.3d 403, 864 N.Y.S.2d 914, 56 A.D.2d 283, 867 N.Y.S.2d 84

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

DecidedOctober 21, 2008

StatusPublished

This text of 55 A.D.3d 403 (Foster v. Kelly) 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

Foster v. Kelly, 55 A.D.3d 403, 864 N.Y.S.2d 914, 56 A.D.2d 283, 867 N.Y.S.2d 84 (N.Y. Ct. App. 2008).

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Opinion

Determination of respondent Commissioner, dated April 26, 2007, terminating petitioner’s employment as a police officer, unanimously confirmed, the petition denied, and this CPLR article 78 proceeding (transferred to this Court by order of Supreme Court, New York County [Shirley Werner Kornreich, J.], entered March 3, 2008), dismissed, without costs.

The findings that petitioner made false and misleading statements to Department investigators and attempted to influence the testimony of a witness in an official investigation are supported by substantial evidence (see 300 Gramatan Ave. Assoc. v [404]*404State Div. of Human Rights, 45 NY2d 176 [1978]). There is no basis for disturbing the hearing officer’s findings of credibility (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]). The penalty of dismissal from employment does not shock the judicial conscience (see Matter of Kelly v Safir, 96 NY2d 32 [2001]). Concur—Mazzarelli, J.P., Catterson, McGuire, Acosta and Renwick, JJ.

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Determination of respondent Commissioner, dated April 26, 2007, terminating petitioner’s employment as a police officer, unanimously confirmed, the petition denied, and this CPLR article 78 proceeding (transferred to this Court by order of Supreme Court, New York County [Shirley Werner Kornreich, J.], entered March 3, 2008), dismissed, without costs.

The findings that petitioner made false and misleading statements to Department investigators and attempted to influence the testimony of a witness in an official investigation are supported by substantial evidence (see 300 Gramatan Ave. Assoc. v [404]*404State Div. of Human Rights, 45 NY2d 176 [1978]). There is no basis for disturbing the hearing officer’s findings of credibility (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]). The penalty of dismissal from employment does not shock the judicial conscience (see Matter of Kelly v Safir, 96 NY2d 32 [2001]). Concur—Mazzarelli, J.P., Catterson, McGuire, Acosta and Renwick, JJ.

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Bluebook (online)

55 A.D.3d 403, 864 N.Y.S.2d 914, 56 A.D.2d 283, 867 N.Y.S.2d 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-kelly-nyappdiv-2008.

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