Opinion
12554 Index No. 155690/18 Case No. 2019-05160
12-03-2020
In re Brian QUIRE, Petitioner, v. CITY OF NEW YORK et al., Respondents.
The Kurland Group, New York (Yetta G. Kurland of counsel), for petitioner. James E. Johnson, Corporation Counsel, New York (D. Alan Rosinus, Jr. of counsel), for respondents.
The Kurland Group, New York (Yetta G. Kurland of counsel), for petitioner.
James E. Johnson, Corporation Counsel, New York (D. Alan Rosinus, Jr. of counsel), for respondents.
Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Order, Supreme Court, New York County (Melissa A. Crane, J.), entered May 31, 2019, which, in this CPLR article 78 proceeding seeking to annul respondents' February 16, 2018 determination finding petitioner guilty of possessing and ingesting methamphetamine and terminating his employment as a police detective, denied the petition to the extent it alleged that the determination was affected by an error of law, and then transferred the questions of substantial evidence and appropriateness of the penalty to this Court, unanimously vacated, on the law, the matter reviewed de novo, and upon such review, respondents' determination unanimously confirmed, the petition denied, and the proceeding dismissed, without costs.
"The [error of law] issue raised by petitioner[ ] and disposed of by the court is not an objection that could have terminated the proceeding within the meaning of CPLR 7804(g), and thus we review the matter de novo" ( Matter of OTR Media Group, Inc. v. Board of Stds. & Appeals of the City of N.Y., 132 A.D.3d 607, 607, 18 N.Y.S.3d 336 [1st Dept. 2015] ; see Matter of G & G Shops v. New York City Loft Bd., 193 A.D.2d 405, 405, 597 N.Y.S.2d 65 [1st Dept. 1993] ).
The determination that petitioner possessed and ingested methamphetamine is supported by substantial evidence in the record ( CPLR 7803[4] ; see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179–182, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ). "[T]hree samples of hair from his [leg] were subjected to repeated testing by independent laboratories and yielded positive results" ( Matter of Lumezi v. Bratton, 147 A.D.3d 566, 566, 46 N.Y.S.3d 799 [1st Dept. 2017] ; see Matter of Jones v. Kelly, 111 A.D.3d 415, 415, 974 N.Y.S.2d 246 [1st Dept. 2013] ). To the extent there were conflicting expert opinions as to the efficacy of drug testing using hair, as well as character witness testimony tending to show that petitioner did not use drugs, "courts may not weigh the evidence or reject the choice made" by the hearing officer to accept or reject particular testimony ( Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443–444, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] ). Petitioner's contention that respondents failed to apply the preponderance of the evidence standard is unavailing, as this Court's review "is limited to a consideration of whether that resolution was supported by substantial evidence upon the whole record" ( 300 Gramatan Ave. Assoc., 45 N.Y.2d at 181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 ). In any event, his contention is unsupported by the text of the determination.
Petitioner's procedural arguments concerning the hearing are unavailing. He waived any objection to the hearing's reopening "by failing to object on the record," instead agreeing to whatever the hearing officer decided and offering suggestions as to how to proceed (see Matter of Stergiou v. New York City Dept. of Educ., 106 A.D.3d 511, 512, 965 N.Y.S.2d 106 [1st Dept. 2013] ). Similarly, administrative res judicata was inapplicable, as no determination had been rendered at the time (see Matter of Jason B. v. Novello, 12 N.Y.3d 107, 113, 876 N.Y.S.2d 682, 904 N.E.2d 818 [2009] ).
We find no grounds to vacate the penalty here, as "[t]he Commissioner's dismissal of a police officer for using illegal drugs is not so disproportionate to the offense as to be shocking to one's sense of fairness" ( Trotta v. Ward, 77 N.Y.2d 827, 828, 566 N.Y.S.2d 199, 567 N.E.2d 241 [1991], citing 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, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ; see also Matter of Jones, 111 A.D.3d at 415, 974 N.Y.S.2d 246 ).