Penney v. Kelly

Appellate Division of the Supreme Court of New York

Penney v. Kelly

16 A.D.3d 342, 792 N.Y.S.2d 70, 2005 N.Y. App. Div. LEXIS 3379

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

DecidedMarch 31, 2005

StatusPublished

Cited by1 cases

This text of 16 A.D.3d 342 (Penney 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

Penney v. Kelly, 16 A.D.3d 342, 792 N.Y.S.2d 70, 2005 N.Y. App. Div. LEXIS 3379 (N.Y. Ct. App. 2005).

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Opinion

Determination of respondent Police Commissioner, dated April 6, 2003, finding petitioner police officer guilty of being absent from her assignment without permission or police necessity, engaging in conduct prejudicial to the good order, efficiency and discipline of the Department, and failing to properly safeguard her service firearm, and imposing a forfeiture of 20 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 [Doris Ling-Cohan, J.], entered January 8, 2004) dismissed, without costs.

The finding that petitioner was absent from her assignment is supported by substantial evidence, including her own testimony admitting that she took a personal break that was significantly longer than what both she and her supervisor understood to be the allotted time. The other two charges are supported by the testimony of the lieutenant who witnessed petitioner’s conduct. No basis exists to disturb respondent’s findings of credibility (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]). The penalty does not shock our sense of fairness. Concur—Friedman, J.P., Marlow, Nardelli, Sweeny and Catterson, JJ.

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Determination of respondent Police Commissioner, dated April 6, 2003, finding petitioner police officer guilty of being absent from her assignment without permission or police necessity, engaging in conduct prejudicial to the good order, efficiency and discipline of the Department, and failing to properly safeguard her service firearm, and imposing a forfeiture of 20 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 [Doris Ling-Cohan, J.], entered January 8, 2004) dismissed, without costs.

The finding that petitioner was absent from her assignment is supported by substantial evidence, including her own testimony admitting that she took a personal break that was significantly longer than what both she and her supervisor understood to be the allotted time. The other two charges are supported by the testimony of the lieutenant who witnessed petitioner’s conduct. No basis exists to disturb respondent’s findings of credibility (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]). The penalty does not shock our sense of fairness. Concur—Friedman, J.P., Marlow, Nardelli, Sweeny and Catterson, JJ.

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Bluebook (online)

16 A.D.3d 342, 792 N.Y.S.2d 70, 2005 N.Y. App. Div. LEXIS 3379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penney-v-kelly-nyappdiv-2005.

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