O'Connor v. Kelly

215 A.D.2d 173, 627 N.Y.S.2d 1, 1995 N.Y. App. Div. LEXIS 4951

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 1995
• Status: Published

Opinion

Determination of respondent Police Commissioner dated August 5, 1993, imposing a penalty of forfeiture of 25 vacation days, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by an order of the Supreme Court, New York County [Herman Cahn, J.], entered on or about February 16, 1994), dismissed, without costs.

Respondent’s determination is supported by substantial evidence. Petitioner violated departmental guidelines by failing to perceive the substantial risk of injury to his partner when he leaned over his partner and discharged his weapon while sitting in the patrol car (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 181). Considering the substantial risk of injury created by petitioner’s actions, the penalty imposed does not shock one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233). Concur— Sullivan, J. P., Rosenberger, Ross, Asch and Williams, JJ.