Opinion
Argued September 11, 1998.
November 6, 2000.
Proceeding pursuant to CPLR article 78 to review a determination of the respondent City of White Plains Commissioner of Public Safety dated December 26, 1996, which adopted the recommendation of a Hearing Officer, made after a hearing, finding the petitioner guilty of six charges of misconduct and terminating him from his position as a firefighter with the White Plains Fire Department. By decision and judgment of this court dated March 29, 1999, the petition was granted, the determination was annulled, and the matter was remitted to the respondents for the calculation of back pay and benefits to which the petitioner might be entitled (see, Matter of Wilson v. City of White Plains, 259 A.D.2d 756). By order of the Court of Appeals dated May 16, 2000 ( 95 N.Y.2d 752), the decision and judgment of this court was reversed and the matter was remitted to this court for determination of the issues raised, but not determined, on the appeal to this court.
Gleason, Dunn, Walsh O'Shea, Albany, N.Y. (James E. Dering of counsel), for petitioner.
Edward P. Dunphy, Corporation Counsel, White Plains, N.Y. (Daniel K. Spencer of counsel), for respondents.
Before: WILLIAM D. FRIEDMANN, J.P., ANITA R. FLORIO, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.
DECISION JUDGMENT
ADJUDGED that the petition is denied and the proceeding is dismissed on the merits, with costs.
Contrary to the petitioner's contention, the involvement in the investigation by the respondent John Dolce, the Public Safety Commissioner of the City of White Plains, did not rise to such a level as to warrant that he disqualify himself from the proceedings (cf., Matter of Wayerling v. County of St. Lawrence, 140 A.D.2d 838, 840; Matter of Cafaro v. Pedersen, 123 A.D.2d 860; Matter of Hicks v. Fortier, 117 A.D.2d 930, 931; Matter of Edgar v. Dowling, 96 A.D.2d 510, 511).
Further, the punishment of dismissal was not excessive in view of the nature of the petitioner's employment as a firefighter responsible for fire safety (see, Meades v. Spinnato, 138 A.D.2d 579, 580).