Mamarella v. Ward

Appellate Division of the Supreme Court of New York

Mamarella v. Ward

155 A.D.2d 372

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

DecidedNovember 28, 1989

StatusPublished

Cited by1 cases

This text of 155 A.D.2d 372 (Mamarella v. Ward) 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.

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Mamarella v. Ward, 155 A.D.2d 372 (N.Y. Ct. App. 1989).

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Opinion

— Proceeding pursuant to CPLR article 78, transferred to this court by order of the Supreme Court, New York County (Beatrice Shainswit, J.), entered July 29, 1988, to review a determination of the respondent Police Commissioner dated April 10, 1988, which dismissed petitioner from employment as a police officer in the City of New York Police Department, is unanimously dismissed and the determination confirmed, without costs.

Petitioner in this case was a police officer against whom were filed a number of charges and specifications. Most significant among these was the charge that he forged an endorsement and cashed a paycheck belonging to a fellow officer, without permission to do so, and appropriated the proceeds to himself. Petitioner also was charged with taking unauthorized leave and making a false entry as to the time when he reported for work. A disciplinary hearing was conducted at which petitioner was represented by counsel. Petitioner was adjudged guilty of all charges and specifications.

Respondent’s determination was supported by substantial evidence and was rationally based (CPLR 7803 [4]; Matter of Pell v Board of Educ., 34 NY2d 222, 230; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180). This court will not substitute its judgment for that of a Hearing Officer when conflicting testimony exists allowing for conflicting inferences (Matter of Berenhaus v Ward, 70 NY2d 436, 443-444), even if the challenger offers a similar quantum of proof, so long as the administrative determination is based on substantial evidence (Matter of Collins v Codd, 38 NY2d 269, 270). Nor can it be said here that "the punishment is so disproportionate to the offense as to be shocking to one’s sense of fairness”, so as to warrant disturbing the respondent Commissioner’s exercise of his reasonable discretion (Matter of Pell v Board of Educ., supra, at 237). Concur — Ross, J. P., Asch, Rosenberger, Smith and Rubin, JJ.

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— Proceeding pursuant to CPLR article 78, transferred to this court by order of the Supreme Court, New York County (Beatrice Shainswit, J.), entered July 29, 1988, to review a determination of the respondent Police Commissioner dated April 10, 1988, which dismissed petitioner from employment as a police officer in the City of New York Police Department, is unanimously dismissed and the determination confirmed, without costs.

Petitioner in this case was a police officer against whom were filed a number of charges and specifications. Most significant among these was the charge that he forged an endorsement and cashed a paycheck belonging to a fellow officer, without permission to do so, and appropriated the proceeds to himself. Petitioner also was charged with taking unauthorized leave and making a false entry as to the time when he reported for work. A disciplinary hearing was conducted at which petitioner was represented by counsel. Petitioner was adjudged guilty of all charges and specifications.

Respondent’s determination was supported by substantial evidence and was rationally based (CPLR 7803 [4]; Matter of Pell v Board of Educ., 34 NY2d 222, 230; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180). This court will not substitute its judgment for that of a Hearing Officer when conflicting testimony exists allowing for conflicting inferences (Matter of Berenhaus v Ward, 70 NY2d 436, 443-444), even if the challenger offers a similar quantum of proof, so long as the administrative determination is based on substantial evidence (Matter of Collins v Codd, 38 NY2d 269, 270). Nor can it be said here that "the punishment is so disproportionate to the offense as to be shocking to one’s sense of fairness”, so as to warrant disturbing the respondent Commissioner’s exercise of his reasonable discretion (Matter of Pell v Board of Educ., supra, at 237). Concur — Ross, J. P., Asch, Rosenberger, Smith and Rubin, JJ.

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155 A.D.2d 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mamarella-v-ward-nyappdiv-1989.

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