Opinion
2003-02437
Submitted June 9, 2003.
June 30, 2003.
Proceeding pursuant to CPLR article 78 to review a determination of the Dutchess County Commissioner of Public Works dated June 12, 2002, which, upon adopting the recommendation of a Hearing Officer, made after a hearing, finding the petitioner guilty of misconduct, terminated his employment as a building maintenance mechanic III.
O'Neil Burke, LLP, Poughkeepsie, N.Y. (William T. Burke of counsel), for petitioner.
Ian G. MacDonald, County Attorney, Poughkeepsie, N.Y. (Keith P. Byron of counsel), for respondent.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, DANIEL F. LUCIANO, HOWARD MILLER, JJ.
DECISION JUDGMENT
ADJUDGED that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
Contrary to the petitioner's contentions, the record contains substantial evidence to support the finding of misconduct against him ( see Matter of Toth v. Nassau County Police Dept., 302 A.D.2d 600; Matter of Colon v. Crew, 278 A.D.2d 234; Matter of Hickman v. Poughkeepsie City School Dist., 237 A.D.2d 289). By his own admission, the petitioner attempted to bypass a locked door to gain access to equipment he was not authorized to use. In so doing, the petitioner broke through a wall. While the petitioner claims that the destruction of the wall was accidental, there was ample evidence supporting the conclusion that the petitioner intentionally cut through the wall. It is well settled that a reviewing court may not weigh the evidence or reject the credibility determination made by the Hearing Officer where, as here, there is conflicting evidence and room for choice exists ( see Matter of Berenhaus v. Ward, 70 N.Y.2d 436; Matter of Silberfarb v. Board of Coop. Educational Servs., 60 N.Y.2d 979). Moreover, in light of the petitioner's past disciplinary record, the penalty of dismissal is not shocking to one's sense of fairness ( see Matter of Scharf v. Levittown Union Free School Dist., 294 A.D.2d 508; Matter of Carcaramo v. County of Dutchess, supra; see also Matter of Pawlowski v. North Brooklyn Health Network, 299 A.D.2d 156; Matter of Martinez v. City of New York, 281 A.D.2d 187).
RITTER, J.P., S. MILLER, LUCIANO and H. MILLER, JJ., concur.