Kinlock v. Doherty

Appellate Division of the Supreme Court of New York

Kinlock v. Doherty

256 A.D.2d 93, 681 N.Y.S.2d 264, 1998 N.Y. App. Div. LEXIS 13255

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

DecidedDecember 10, 1998

StatusPublished

This text of 256 A.D.2d 93 (Kinlock v. Doherty) 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

Kinlock v. Doherty, 256 A.D.2d 93, 681 N.Y.S.2d 264, 1998 N.Y. App. Div. LEXIS 13255 (N.Y. Ct. App. 1998).

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Opinion

—Amended order and judgment (one paper), Supreme Court, New York County (Louis York, J.), entered December 17, 1996, which, inter alia, granted petitioner’s application pursuant to CPLR article 78 to the extent of vacating respondent’s determination terminating petitioner’s employment as a sanitation worker, restoring petitioner to service forthwith and retroactively, and [94]*94remanding the matter to respondent for implementation of the monetary sanction recommended by the Administrative Law Judge, unanimously affirmed, without costs.

In light of the numerous instances cited by the Administrative Law Judge in which respondent imposed penalties less severe than termination for violations of its sick leave policy similar to that for which petitioner was disciplined, Supreme Court properly concluded that respondent’s determination to terminate petitioner for such violations was arbitrary and capricious, an abuse of discretion, and shocking to the conscience of the court. We also find that the penalty was entirely disproportionate to the offense (see, Matter of Pell v Board of Educ., 34 NY2d 222). Concur — Lerner, P. J., Ellerin, Andrias and Saxe, JJ.

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—Amended order and judgment (one paper), Supreme Court, New York County (Louis York, J.), entered December 17, 1996, which, inter alia, granted petitioner’s application pursuant to CPLR article 78 to the extent of vacating respondent’s determination terminating petitioner’s employment as a sanitation worker, restoring petitioner to service forthwith and retroactively, and [94]*94remanding the matter to respondent for implementation of the monetary sanction recommended by the Administrative Law Judge, unanimously affirmed, without costs.

In light of the numerous instances cited by the Administrative Law Judge in which respondent imposed penalties less severe than termination for violations of its sick leave policy similar to that for which petitioner was disciplined, Supreme Court properly concluded that respondent’s determination to terminate petitioner for such violations was arbitrary and capricious, an abuse of discretion, and shocking to the conscience of the court. We also find that the penalty was entirely disproportionate to the offense (see, Matter of Pell v Board of Educ., 34 NY2d 222). Concur — Lerner, P. J., Ellerin, Andrias and Saxe, JJ.

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Bluebook (online)

256 A.D.2d 93, 681 N.Y.S.2d 264, 1998 N.Y. App. Div. LEXIS 13255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kinlock-v-doherty-nyappdiv-1998.