Lowe v. Doherty

Appellate Division of the Supreme Court of New York

Lowe v. Doherty

52 A.D.3d 233, 859 N.Y.S.2d 76

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

DecidedJune 3, 2008

StatusPublished

This text of 52 A.D.3d 233 (Lowe 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

Lowe v. Doherty, 52 A.D.3d 233, 859 N.Y.S.2d 76 (N.Y. Ct. App. 2008).

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Opinion

Determination of respondent Commissioner of New York City Department of Sanitation, dated October 17, 2007, terminating respondent’s employment as a sanitation worker, 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 [Shirley Werner Kornreich, J.], entered June 12, 2007), dismissed, without costs.

The finding that petitioner solicited and accepted a gratuity in exchange for collecting trade waste is supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]), including the testimony of the undercover investigators who conducted an “integrity test” on petitioner and the audio recording they made of the test. No basis exists to disturb the hearing officer’s findings of credibility (cf. Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]). The penalty of termination does not shock the conscience (cf. Cranford v Sexton, 159 AD2d 348, 349 [1990]). Concur—Andrias, J.P, Gonzalez, Moskowitz and DeGrasse, JJ.

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Determination of respondent Commissioner of New York City Department of Sanitation, dated October 17, 2007, terminating respondent’s employment as a sanitation worker, 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 [Shirley Werner Kornreich, J.], entered June 12, 2007), dismissed, without costs.

The finding that petitioner solicited and accepted a gratuity in exchange for collecting trade waste is supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]), including the testimony of the undercover investigators who conducted an “integrity test” on petitioner and the audio recording they made of the test. No basis exists to disturb the hearing officer’s findings of credibility (cf. Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]). The penalty of termination does not shock the conscience (cf. Cranford v Sexton, 159 AD2d 348, 349 [1990]). Concur—Andrias, J.P, Gonzalez, Moskowitz and DeGrasse, JJ.

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Bluebook (online)

52 A.D.3d 233, 859 N.Y.S.2d 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowe-v-doherty-nyappdiv-2008.

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