Perez v. City of New York Civil Service Commission

140 A.D.2d 224, 528 N.Y.S.2d 73, 1988 N.Y. App. Div. LEXIS 5279

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 1988
• Status: Published

Opinion

The findings of guilt as to the use of excessive force against inmates and the failure to make the proper notification regarding the use of force against an inmate, which were affirmed by the New York City Civil Service Commission on a separate appeal (see, Civil Service Law § 76 [1]) and confirmed by the motion court, are amply documented in the transcript of the disciplinary hearing. The penalty, although also affirmed by the Civil Service Commission, was set aside by the court, which, citing petitioner’s lack of a disciplinary record, found that dismissal was clearly disproportionate to the offense and directed his reinstatement as a correction officer. We reverse and reinstate the penalty.

In the judicial review of matters affecting public employees, "respect and weight are to be accorded the determination made by the agency charged with responsibility for fixing the penalty or discipline because of the special capability, competence and experience of that agency and in consequence of the confidence in it implicit in the legislative grant of authority and responsibility to it.” (Matter of Ahsaf v Nyquist, 37 NY2d 182, 184.) The penalty imposed here was plainly warranted and, in setting it aside, the court exceeded the limited scope of its review. Concur — Murphy, P. J., Sandler, Sullivan, Asch and Milonas, JJ.