McWilliams v. Haveliwala

70 A.D.2d 659, 417 N.Y.S.2d 17, 1979 N.Y. App. Div. LEXIS 12125

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1979
• Status: Published

Opinion

— In a proceeding pursuant to CPLR article 78 to review a determination dismissing the petitioner from his position, the appeal is from a judgment of the Supreme Court, Dutchess County, dated November 13, 1978, which granted the petition to the extent of directing that the petitioner be reinstated to his former position and remanded the matter for the imposition of a new penalty. Judgment reversed, on the law, without costs or disbursements, determination confirmed and proceeding dismissed on the merits. Special Term erred when it construed the prior order of this court, which remanded the matter to the director to fix an appropriate punishment, as implying that the punishment imposed should be something less than dismissal (see Matter of McWilliams v Haveliwala, 61 AD2d 1032). Regarding review of administrative determinations, the Court of Appeals, in Matter of Pell v Board of Educ. (34 NY2d 222, 231), said: "Where, however, a hearing is held, the determination must be supported by substantial evidence (CPLR 7803, subd. 4); and where a determination is made and the person acting has not acted in excess of his jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of his discretionary power, including discretion as to the penalty imposed, the courts have no alternative but to confirm his determination (CPLR 7803, subd. 3; Matter of Procaccino v. Stewart, 25 N Y 2d 301; but see Matter of Picconi v. Lowery, 35 A D 2d 693, affd. 28 N Y 2d 962).” The determination should be confirmed. Hopkins, J. P., Damiani, Titone and Lazer, JJ., concur.