Whitehead v. McMickens

509 N.E.2d 335, 69 N.Y.2d 942, 516 N.Y.S.2d 640, 1987 N.Y. LEXIS 16466

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

This is an article 78 proceeding in which petitioner, a New York City Correction Officer, seeks to annul the determination of the Commissioner of the Department of Correction suspending the petitioner without pay for 10 days.

The sole issue presented for this court’s review is whether the Commissioner’s finding that petitioner had acted in a "disrespectful and contemptuous manner” toward a supervisor was supported by substantial evidence in the record (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176).

We conclude that the testimony of the superior officer coupled with petitioner’s own account of the incident is sufficient evidence to support a finding of insubordination and disrespectful behavior. This conclusion, along with the other two findings of misconduct which are uncontested, warrants affirmance of the Appellate Division’s order refusing to annul the Commissioner’s disciplinary determination.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.