Turner v. Simpson

96 A.D.2d 599, 465 N.Y.S.2d 291, 1983 N.Y. App. Div. LEXIS 19129

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 25, 1983
• Status: Published

Opinion

— In a proceeding pursuant to CPLR article 78 to review a determination of the President of the New York City Transit Authority, made July 10, 1981, which, after a hearing, found petitioner guilty of misconduct and dismissed him from his position with the transit authority, the appeal is from a judgment of the Supreme Court, Kings County (Douglass, J.), dated December 3, 1982, which granted the petition to the extent of (1) annulling the determination and (2) directing petitioner’s reinstatement, without back pay. Judgment reversed, on the law, without costs or disbursements, determination confirmed, and proceeding dismissed on the merits. Following a hearing, the hearing referee found that petitioner had failed to perform scheduled duties and had violated attendance rules. The referee recommended that petitioner be dismissed from his position. Upon review, the Impartial Disciplinary Review Board concluded that the referee’s recommendation should be modified to the extent of reducing the penalty to a suspension without pay. Appellant, upon his consideration of 'the recommendations of the hearing referee and of the review board, decided to reject the latter and adopt the recommendation of the hearing referee. In view of petitioner’s numerous instances of past violations, there was a rational basis for appellant’s exercise of discretion to adopt the recommendation of the hearing referee (see Matter of Ramsey v New York City Tr.Auth., 50 AD2d 895, affd 40 NY2d 960). Especially noteworthy is the fact that, following a trial board hearing on October 24,1979, petitioner was found guilty of insubordination and was given a “final warning”. Thus, petitioner was placed on notice that the sustaining of any future charges could result in his dismissal from service. Therefore, appellant acted properly in determining to dismiss petitioner (see Matter of Best v New York City Tr. Auth., 74 AD2d 828). Damiani, J. P., Mangano, O’Connor and Niehoff, JJ., concur.