Olavarria v. Kelly

Appellate Division of the Supreme Court of New York

Olavarria v. Kelly

37 A.D.3d 191, 830 N.Y.S.2d 509

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

DecidedFebruary 6, 2007

StatusPublished

This text of 37 A.D.3d 191 (Olavarria 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

Olavarria v. Kelly, 37 A.D.3d 191, 830 N.Y.S.2d 509 (N.Y. Ct. App. 2007).

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Opinion

Determination of respondent Commissioner, dated October 15, 2004, which dismissed petitioner from the Police Department, 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 April 22, 2005) dismissed, without costs.

There was substantial evidence at the administrative hearing that over a period of 2V2 years, while assigned to various commands, petitioner engaged in acts that included assault, insubordination, being discourteous to superior officers, violating an order of protection, and being asleep on duty. There is no basis for disturbing the credibility findings underlying these conclusions (see Matter of Berenhaus v Ward, 70 NY2d 436 [1987]). Under the circumstances, the penalty of dismissal does not shock the judicial conscience (see Matter of Harp v New York City Police Dept., 96 NY2d 892 [2001]). Concur—Tom, J.E, Friedman, Sullivan, Nardelli and Catterson, JJ.

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Determination of respondent Commissioner, dated October 15, 2004, which dismissed petitioner from the Police Department, 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 April 22, 2005) dismissed, without costs.

There was substantial evidence at the administrative hearing that over a period of 2V2 years, while assigned to various commands, petitioner engaged in acts that included assault, insubordination, being discourteous to superior officers, violating an order of protection, and being asleep on duty. There is no basis for disturbing the credibility findings underlying these conclusions (see Matter of Berenhaus v Ward, 70 NY2d 436 [1987]). Under the circumstances, the penalty of dismissal does not shock the judicial conscience (see Matter of Harp v New York City Police Dept., 96 NY2d 892 [2001]). Concur—Tom, J.E, Friedman, Sullivan, Nardelli and Catterson, JJ.

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37 A.D.3d 191, 830 N.Y.S.2d 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olavarria-v-kelly-nyappdiv-2007.

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