McKenna v. Town of Orangetown

80 A.D.2d 636, 437 N.Y.S.2d 939, 1981 N.Y. App. Div. LEXIS 10338

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 1981
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent town board, dated August 2, 1979 and made after a hearing, which dismissed petitioner from his position as a police officer. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. Based upon the allegations of misconduct in the case at bar, respondents were justified in proceeding pursuant to section 75 of the Civil Service Law. (See Matter of Brockman v Skidmore, 39 NY2d 1045, revg 43 AD2d 572.) Although the testimony elicited at the hearing concerning the underlying basis for petitioner’s actions was in conflict, it is the function solely of the agency to weigh the testimony (see Matter of Collins v Codd, 38 NY2d 269). There is substantial evidence to support the determination. Finally, in view of the seriousness of the misconduct and the importance of public trust in its police officers, it cannot be said that the punishment of dismissal was so disproportionate to the offense so as to shock one’s conscience. (See Matter of Alfieri v Murphy, 47 AD2d 820, affd 38 NY2d 976; Matter of Muldoon v Mayor of Syracuse, 34 NY2d 222, 236-237.) Gibbons, J. P., Rabin, Gulotta and Margett, JJ., concur.