Schwartzbaum v. Horn

Appellate Division of the Supreme Court of New York

Schwartzbaum v. Horn

49 A.D.3d 324, 852 N.Y.2d 136

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

DecidedMarch 11, 2008

StatusPublished

This text of 49 A.D.3d 324 (Schwartzbaum v. Horn) 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

Schwartzbaum v. Horn, 49 A.D.3d 324, 852 N.Y.2d 136 (N.Y. Ct. App. 2008).

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Opinion

The determination reassigning Harrison from warden level II, where he served as respondent’s chief of staff, to warden level I was not arbitrary or capricious, and was a rational exercise of discretion. Although Harrison was under investigation for possible wrongdoing in allegedly giving a Department of Correction (DOC) snowblower to a correction officer for his own use, the record evidence, including respondent’s testimony, establishes that Harrison’s reassignment was not a disciplinary punishment, which would implicate the procedural protections afforded by Civil Service Law § 75, but one based on the assessment that Harrison lacked the requisite integrity and judgment to retain his position (compare Matter of Campbell v New York City Tr. Auth., 253 AD2d 813 [1998], lv denied 93 NY2d 805 [1999]). The determination was within respondent’s discretion (see Matter of Kitchings v Jenkins, 85 NY2d 694, 698 [1995]), and was based on Harrison’s own admissions that after becoming aware [325]*325of the allegations of wrongdoing as a result of the access he had to sensitive information in his position as respondent’s chief of staff, he contacted the correction officer and instructed him to get rid of the snowblower. There exists no basis to disturb the court’s findings crediting respondent’s testimony. Concur— Tom, J.P., Buckley, Sweeny and Moskowitz, JJ.

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The determination reassigning Harrison from warden level II, where he served as respondent’s chief of staff, to warden level I was not arbitrary or capricious, and was a rational exercise of discretion. Although Harrison was under investigation for possible wrongdoing in allegedly giving a Department of Correction (DOC) snowblower to a correction officer for his own use, the record evidence, including respondent’s testimony, establishes that Harrison’s reassignment was not a disciplinary punishment, which would implicate the procedural protections afforded by Civil Service Law § 75, but one based on the assessment that Harrison lacked the requisite integrity and judgment to retain his position (compare Matter of Campbell v New York City Tr. Auth., 253 AD2d 813 [1998], lv denied 93 NY2d 805 [1999]). The determination was within respondent’s discretion (see Matter of Kitchings v Jenkins, 85 NY2d 694, 698 [1995]), and was based on Harrison’s own admissions that after becoming aware [325]*325of the allegations of wrongdoing as a result of the access he had to sensitive information in his position as respondent’s chief of staff, he contacted the correction officer and instructed him to get rid of the snowblower. There exists no basis to disturb the court’s findings crediting respondent’s testimony. Concur— Tom, J.P., Buckley, Sweeny and Moskowitz, JJ.

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Bluebook (online)

49 A.D.3d 324, 852 N.Y.2d 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartzbaum-v-horn-nyappdiv-2008.

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