Gallagher v. Jackson

78 A.D.3d 833, 910 N.Y.S.2d 655

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 2010
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the Westchester County Department of Emergency Services, dated June 26, 2009, which adopted the findings and recommendations of a hearing officer dated June 15, 2008, made after a hearing, finding the petitioner guilty of misconduct and/or incompetence, and demoted him from the position of Senior Communications Operator to the position of Communications Operator.

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

Contrary to the petitioner’s contentions, the determination of the Westchester County Department of Emergency Services, that the petitioner was guilty of specifications four and six, is supported by substantial evidence (see Matter of Huth v Barr, 56 AD3d 556 [2008]). Further, the penalty of demotion was not “so disproportionate to the offense . . . as to be shocking to one’s sense of fairness,” thus constituting an abuse of discretion as a matter of law (Matter of Kreisler v New York City Tr. Auth., 2 NY3d 775, 776 [2004] [citation omitted]; see Matter of Huth v Barr, 56 AD3d 556 [2008]).

The petitioner’s remaining contentions are without merit. Dillon, J.P., Florio, Angiolillo and Dickerson, JJ., concur.