New York City Department of Sanitation v. New York City Civil Service Commission

114 A.D.2d 320, 494 N.Y.S.2d 312, 1985 N.Y. App. Div. LEXIS 52998

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 1985
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Greenfield, J.), entered June 11, 1984, denying the application of the petitioner, Department of Sanitation, to set aside a determination of the New York City Civil Service Commission which modified the penalty of dismissal imposed by petitioner upon sanitation man John McCormick to a 44-day suspension, unanimously affirmed, without costs or disbursements.

As a result of his activities at a bar in which he had a one-half interest, McCormick, a sanitation man since 1969, was found guilty of violations of the Department of Sanitation’s rules governing sick leave and was dismissed from the Department. He thereafter appealed to the New York City Civil Service Commission, which affirmed the findings of guilt but, citing his "commendable” work record and the fact that he was never seen working in the bar but merely on the premises, reduced the penalty to a 44-day suspension. Civil Service Law § 76 (3) vests the Commission, on review of a disciplinary proceeding, with the authority to affirm, reverse or modify a penalty. Thus, the focus of our review is limited to the 44-day suspension, not its relationship to the original penalty.

While we believe dismissal to be the appropriate penalty, we cannot say that the Commission’s determination lacks a rational basis or that it is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.” (Matter of Stolz v Board of Regents, 4 AD2d 361, 364; Matter of Pell v Board of Educ., 34 NY2d 222, 233.) Thus, we affirm. Concur—Kupferman, J. P., Sullivan, Asch and Milonas, JJ.