Molina v. Kelly

Appellate Division of the Supreme Court of New York

Molina v. Kelly

30 A.D.3d 304, 818 N.Y.S.2d 47

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

DecidedJune 27, 2006

StatusPublished

This text of 30 A.D.3d 304 (Molina v. Kelly) 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

Molina v. Kelly, 30 A.D.3d 304, 818 N.Y.S.2d 47 (N.Y. Ct. App. 2006).

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Opinion

Determination of respondent Commissioner of the New York City Police Department, dated August 9, 2004, dismissing petitioner from her position as a New York City police officer, 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 [Paul G. Feinman, J.], entered March 22, 2005) dismissed, without costs.

Substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]) supported the administrative findings that petitioner was involved in a scheme to defraud her insurer by falsely reporting the theft and arson of her vehicle, and failing to disclose that the vehicle had been damaged before the purported theft. Petitioner’s testimony was highly suspect by virtue of its many inconsistencies and purported “coincidences.” We note particularly that the claimed theft occurred just one week after petitioner’s vehicle sustained damage in a hit-and-run accident, and that most of this damage was still unrepaired at the time of the claimed theft. Although, in official interviews following the claimed theft, petitioner was repeatedly asked whether there had been prior accidents involving, or body damage to, the vehicle, she did not disclose the very recent hit-and-run accident. While, at the administrative hearing, she claimed that the damage sustained in that accident was only “cosmetic,” she finally admitted that the vehicle had, in fact, been damaged prior to the theft. We note further, the curious circumstance that when the vehicle was stolen, it was purportedly garaged for repairs at a facility located in a county other than that of petitioner’s residence or employment, where petitioner’s sister happened to be employed in the Police Department.

The penalty imposed does not shock the conscience (see e.g. [305]*305Matter of Reynald v Kelly, 26 AD3d 223 [2006]). Concur— Buckley, EJ., Tom, Friedman, Nardelli and McGuire, JJ.

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Determination of respondent Commissioner of the New York City Police Department, dated August 9, 2004, dismissing petitioner from her position as a New York City police officer, 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 [Paul G. Feinman, J.], entered March 22, 2005) dismissed, without costs.

Substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]) supported the administrative findings that petitioner was involved in a scheme to defraud her insurer by falsely reporting the theft and arson of her vehicle, and failing to disclose that the vehicle had been damaged before the purported theft. Petitioner’s testimony was highly suspect by virtue of its many inconsistencies and purported “coincidences.” We note particularly that the claimed theft occurred just one week after petitioner’s vehicle sustained damage in a hit-and-run accident, and that most of this damage was still unrepaired at the time of the claimed theft. Although, in official interviews following the claimed theft, petitioner was repeatedly asked whether there had been prior accidents involving, or body damage to, the vehicle, she did not disclose the very recent hit-and-run accident. While, at the administrative hearing, she claimed that the damage sustained in that accident was only “cosmetic,” she finally admitted that the vehicle had, in fact, been damaged prior to the theft. We note further, the curious circumstance that when the vehicle was stolen, it was purportedly garaged for repairs at a facility located in a county other than that of petitioner’s residence or employment, where petitioner’s sister happened to be employed in the Police Department.

The penalty imposed does not shock the conscience (see e.g. [305]*305Matter of Reynald v Kelly, 26 AD3d 223 [2006]). Concur— Buckley, EJ., Tom, Friedman, Nardelli and McGuire, JJ.

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30 A.D.3d 304, 818 N.Y.S.2d 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/molina-v-kelly-nyappdiv-2006.

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