Gaudioso v. Schembri

Appellate Division of the Supreme Court of New York

Gaudioso v. Schembri

221 A.D.2d 165, 633 N.Y.S.2d 142, 1995 N.Y. App. Div. LEXIS 10744

Appellate Division of the Supreme Court of the State of New York·Decided November 2, 1995·Published·Cited by 1 cases

Opinion

—Determination of respondent Department of Correction dated March 2, 1994, which terminated petitioner from his employment, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Stanley Sklar, J.], entered July 18, 1994) dismissed, without costs.

Substantial evidence, including the testimony of two chemists confirming the presence of marijuana in petitioner’s urine, supports respondent’s determination that, in violation of departmental rules, petitioner used marijuana. We note that the Administrative Law Judge was in the best position to ascertain the credibility of petitioner’s testimony that he had unknowingly ingested marijuana by eating a piece of cake containing the substance (Matter of Berenhaus v Ward, 70 NY2d 436, 443-444). Finally, respondent’s termination of petitioner does not shock the conscience given the nature of his work (see, Matter of Seelig v Koehler, 76 NY2d 87, 93-94, [166] cert denied 498 US 847). Concur—Ellerin, J. P., Wallach, Nardelli and Williams, JJ.

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—Determination of respondent Department of Correction dated March 2, 1994, which terminated petitioner from his employment, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Stanley Sklar, J.], entered July 18, 1994) dismissed, without costs.

Substantial evidence, including the testimony of two chemists confirming the presence of marijuana in petitioner’s urine, supports respondent’s determination that, in violation of departmental rules, petitioner used marijuana. We note that the Administrative Law Judge was in the best position to ascertain the credibility of petitioner’s testimony that he had unknowingly ingested marijuana by eating a piece of cake containing the substance (Matter of Berenhaus v Ward, 70 NY2d 436, 443-444). Finally, respondent’s termination of petitioner does not shock the conscience given the nature of his work (see, Matter of Seelig v Koehler, 76 NY2d 87, 93-94, [166] cert denied 498 US 847). Concur—Ellerin, J. P., Wallach, Nardelli and Williams, JJ.

Gaudioso v. Schembri, 221 A.D.2d 165, 633 N.Y.S.2d 142, 1995 N.Y. App. Div. LEXIS 10744 (N.Y. Ct. App. 1995).

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Opinion

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