Tuohey v. Malkmes

109 A.D.2d 889, 487 N.Y.S.2d 724, 1985 N.Y. App. Div. LEXIS 47407

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 1985
• Status: Published

Opinion

— Proceeding pursuant to CPLR article 78 to review a determination of the respondent Superintendent of Highways of the Town of Brookhaven, dated April 21, 1983, which, after a hearing, found petitioner guilty of charges of “gross insubordination” and “failure to perform duties” and dismissed him from employment.

Determination confirmed and proceeding dismissed on the merits, without costs or disbursements.

A review of the record indicates that the findings of the hearing officer, which respondent was permitted to adopt as his own (see, Matter of Teahan v Bates, 97 AD2d 768, 769; Matter of Glengariff Corp. v Axelrod, 93 AD2d 900, 901), were supported by substantial evidence (Matter of Silberfarb v Board of Coop. Educ. Servs., 60 NY2d 979).

Moreover, the sanction of dismissal is not so disproportionate to the offenses committed as to be shocking to one’s sense of fairness (Matter of Pell v Board of Educ., 34 NY2d 222) when it is considered that petitioner’s demonstrated misconduct included verbal abuse and threats of violence directed at his supervisor in the presence of other employees.

Finally, we have considered petitioner’s contention that the disciplinary hearing did not afford him due process and find it to be lacking in merit. Mangano, J. P., Brown, Rubin and Lawrence, JJ., concur.