Rodriguez v. Kelly

Appellate Division of the Supreme Court of New York

Rodriguez v. Kelly

102 A.D.3d 594, 958 N.Y.S.2d 301

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

DecidedJanuary 29, 2013

StatusPublished

This text of 102 A.D.3d 594 (Rodriguez 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

Rodriguez v. Kelly, 102 A.D.3d 594, 958 N.Y.S.2d 301 (N.Y. Ct. App. 2013).

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Opinion

Determination of respondent Commissioner of the City of New York Department of Finance, dated March 12, 2010, terminating petitioner’s employment as a deputy sheriff for the City of New York, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Barbara Jaffe, J.], entered February 9, 2011), dismissed, without costs.

Substantial evidence supports the findings that petitioner falsely reported that he was unable to work from October 2008 to June 2009; that he engaged in unauthorized outside employment; and that he lied under oath when he denied engaging in such outside employment at his workers’ compensation hearing. There exists no basis to disturb the credibility determinations of the Administrative Law Judge (see generally Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]).

The penalty of termination does not shock our sense of fairness (see e.g. Matter of Cherry v Horn, 66 AD3d 556 [1st Dept 2009]). Concur—Andrias, J.P., Sweeny, DeGrasse, Freedman and Richter, JJ.

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Determination of respondent Commissioner of the City of New York Department of Finance, dated March 12, 2010, terminating petitioner’s employment as a deputy sheriff for the City of New York, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Barbara Jaffe, J.], entered February 9, 2011), dismissed, without costs.

Substantial evidence supports the findings that petitioner falsely reported that he was unable to work from October 2008 to June 2009; that he engaged in unauthorized outside employment; and that he lied under oath when he denied engaging in such outside employment at his workers’ compensation hearing. There exists no basis to disturb the credibility determinations of the Administrative Law Judge (see generally Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]).

The penalty of termination does not shock our sense of fairness (see e.g. Matter of Cherry v Horn, 66 AD3d 556 [1st Dept 2009]). Concur—Andrias, J.P., Sweeny, DeGrasse, Freedman and Richter, JJ.

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Bluebook (online)

102 A.D.3d 594, 958 N.Y.S.2d 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-kelly-nyappdiv-2013.

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