Opinion
04-05-2017
In the Matter of Daniel ARMBRUSTER, petitioner, v. Salvatore CASSANO, etc., respondent.
Agulnick & Gogel, LLC, Great Neck, NY (Barry W. Agulnick of counsel), for petitioner. Zachary W. Carter, Corporation Counsel, New York, NY (Cecelia Chang and Damion K.L. Stodola of counsel), for respondent.
Agulnick & Gogel, LLC, Great Neck, NY (Barry W. Agulnick of counsel), for petitioner.
Zachary W. Carter, Corporation Counsel, New York, NY (Cecelia Chang and Damion K.L. Stodola of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
Proceeding pursuant to CPLR article 78 to review a determination of the respondent, the Commissioner of the Fire Department of the City of New York, dated October 15, 2012, which affirmed a determination of an administrative law judge dated August 24, 2012, made after a hearing, that the petitioner was guilty of three charges of misconduct and terminated his employment as a firefighter with the Fire Department of the City of New York.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
The petitioner tested positive for cocaine during a random drug test administered by the Fire Department of the City of New York (hereinafter the Fire Department). At the subsequent administrative hearing, the petitioner admitted that he tested positive for cocaine in contravention of the Fire Department's "zero tolerance" drug policy. In support of his affirmative defense that his ingestion of cocaine was unknowing, the petitioner testified at the hearing that he could not recall the circumstances of his cocaine use because "I was drinking excessively and I blacked out." The Commissioner of the Fire Department, upon the report and recommendation of the Administrative Law Judge (hereinafter the ALJ), found the petitioner guilty of the charges and terminated his employment. The petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination.
Review of an administrative determination made after a trial-type hearing directed by law is limited to whether the determination is supported by substantial evidence (see Matter of Jennings v. New York State Off. of Mental Health, 90 N.Y.2d 227, 239, 660 N.Y.S.2d 352, 682 N.E.2d 953 ; Matter of Mack v. NYCHA Red Hook W. Houses, 127 A.D.3d 1198, 1199, 5 N.Y.S.3d 905 ). When there is conflicting evidence or different inferences may be drawn, " ‘the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists' " (Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 444, 522 N.Y.S.2d 478, 517 N.E.2d 193, quoting Matter of Stork Rest. v. Boland, 282 N.Y. 256, 267, 26 N.E.2d 247 ; see Matter of Grimaldi v. Gough, 114 A.D.3d 679, 680, 979 N.Y.S.2d 682 ). Here, any credibility issues were resolved by the hearing officer, and we find no basis upon which to disturb the determination, which was supported by substantial evidence (see Matter of Grimaldi v. Gough, 114 A.D.3d at 680, 979 N.Y.S.2d 682 ; Matter of Scuderi v. Gardner, 103 A.D.3d 645, 647, 960 N.Y.S.2d 132 ).
Moreover, the petitioner was not deprived of due process by the cumulative effect of the approximately three-year delay in conducting the administrative hearing, the ALJ's evidentiary rulings, the petitioner's brief exclusion from the hearing during a pause in his testimony, and the Fire Department counsel's isolated disparaging commentary. The prejudice arising from these circumstances, where it arose at all, did not so permeate the underlying hearing as to render it unfair (see Matter of O'Keefe v. Murphy, 38 N.Y.2d 563, 567–568, 381 N.Y.S.2d 821, 345 N.E.2d 292 ; Matter of Rigle v. Daines, 78 A.D.3d 1249, 1250–1251, 910 N.Y.S.2d 299 ; Matter of Jean–Baptiste v. Sobol, 209 A.D.2d 823, 824, 619 N.Y.S.2d 355 ).
In light of the petitioner's relatively brief tenure with the
Fire Department at the time of his positive drug test and the ALJ's finding that the petitioner's testimony lacked credibility, application of the zero tolerance drug policy to impose the penalty of termination was not so disproportionate to the offense committed as to be shocking to one's sense of fairness, despite evidence that the petitioner had previously sustained two employment-related injuries (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 237, 356 N.Y.S.2d 833, 313 N.E.2d 321 ; Matter of Kelly v. Scoppetta, 56 A.D.3d 475, 476, 866 N.Y.S.2d 770 ; Matter of O'Neill v. City of New York, 52 A.D.3d 258, 859 N.Y.S.2d 183 ; Matter of Kirk v. City of New York, 47 A.D.3d 406, 848 N.Y.S.2d 169 ).