Whittington v. Porcari

41 A.D.2d 1023, 343 N.Y.S.2d 1003, 1973 N.Y. App. Div. LEXIS 4384

Opinion

Determination unanimously modified by reducing penalty to suspension to date hereof, and as so modified determination confirmed, without costs. Memorandum: Petitioner, a property conservation inspector for the Commission of Buildings and Property Conservation of the City of Rochester, was dismissed from his position for incompetency and dereliction of duty after a hearing. He challenged the dismissal on the grounds that the evidence was insufficient to support the determination or, in the alternative, that dismissal was an abuse of discretion, reviewable pursuant to CPLR 7803 (subd. 3). “ An appeal from a determination of an administrative agency made after a hearing at which some evidence has been taken raises the single issue of whether the findings are, on the entire record, supported by substantial evidence.” (Matter of Shell Cr. Sailing Club v. Board of Zoning Appeals of Town of Hempstead, 20 N Y 2d 841, 843-844.) The record contains substantial evidence from which the Commissioner could find petitioner guilty of the charges against him and the decision should not be disturbed on this ground. However, his previous record of 11 years of service without any charge or demerit against him does not justify dismissal. (See Matter of Picconi v. Lowery, 35 A D 2d 693, affd. 28 N Y 2d 962.) (Review of determination dismissing petitioner, transferred by order of Monroe Special Term.) Present — Del Vecehio, J. P., Marsh, Moule, Simons and Henry, JJ.