Neale v. Kelly

Appellate Division of the Supreme Court of New York

Neale v. Kelly

22 A.D.3d 317, 804 N.Y.S.2d 292

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

DecidedOctober 13, 2005

StatusPublished

This text of 22 A.D.3d 317 (Neale 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.

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Neale v. Kelly, 22 A.D.3d 317, 804 N.Y.S.2d 292 (N.Y. Ct. App. 2005).

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Opinion

[318]*318Determination of respondent Commissioner, dated January 19, 2004, imposing a forfeiture of 30 vacation days, 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 [Alice Schlesinger, J.], entered September 23, 2004) dismissed, without costs.

Respondents’ findings that petitioner, while acting in his official capacity, utilized excessive force and was discourteous are supported by substantial evidence, including the testimony of a disinterested witness. There is no basis to disturb the hearing officer’s credibility determinations (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]), and the penalty does not shock our sense of fairness (see Matter of Kelly v Safir, 96 NY2d 32, 40 [2001]). Concur—Tom, J.P., Saxe, Nardelli, Catterson and Malone, JJ.

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[318]*318Determination of respondent Commissioner, dated January 19, 2004, imposing a forfeiture of 30 vacation days, 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 [Alice Schlesinger, J.], entered September 23, 2004) dismissed, without costs.

Respondents’ findings that petitioner, while acting in his official capacity, utilized excessive force and was discourteous are supported by substantial evidence, including the testimony of a disinterested witness. There is no basis to disturb the hearing officer’s credibility determinations (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]), and the penalty does not shock our sense of fairness (see Matter of Kelly v Safir, 96 NY2d 32, 40 [2001]). Concur—Tom, J.P., Saxe, Nardelli, Catterson and Malone, JJ.

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22 A.D.3d 317, 804 N.Y.S.2d 292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neale-v-kelly-nyappdiv-2005.

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