Rodriguez v. Kelly

Full title: JEFFERSON RODRIGUEZ, Petitioner, v. RAYMOND KELLY, as Police Commissioner…

Court: Supreme Court of the State of New York, New York County

Date published: Jan 4, 2011

2011 N.Y. Slip Op. 30049 (N.Y. Sup. Ct. 2011)

Opinion

109088/10.

January 4, 2011.

Dominick Revellino, Esq., Lake Success, NY, for petitioner.

Andre L. Lindsay, ACC, Michael A. Cardozo, Corporation Counsel, New York, NY, for respondents.

DECISION, ORDER JUDGMENT

BARBARA JAFFE, JSC.

By notice of petition dated July 8, 2010, petitioner moves pursuant to CPLR Article 78 for an order and judgment annulling the determination of respondent New York City Office of Administrative Trials and Hearings by Kevin F. Casey, Administrative Law Judge, terminating petitioner from his position as deputy sheriff for the City of New York or, in the alternative, finding that the penalty imposed is harsh and excessive or, in the alternative, transferring this matter to the Appellate Division on the ground that it is not supported by substantial evidence. Respondents assert affirmative defenses and request that the matter be transferred to the Appellate Division. Petitioner did not appear for oral argument.

Pursuant to Article 78, a party aggrieved by an administrative decision may challenge it in court, although the grounds for annulment or vacatur of the decision are limited. Where the petitioner challenges a determination rendered after a hearing mandated by law on the ground that it was not supported by substantial evidence, the action must be transferred to the Appellate Division. (CPLR 7803, 7804[g]; Siegel, NY Prac § 568 [4^th ed]). However, the supreme court may decide legal issues that could terminate the proceeding without reaching the substantial evidence issue. (CPLR 7804; Siegel NY Prac § 568; In the Matter of Hop-Wah v Coughlin, 118 AD2d 275 [3d Dept 1986]; revd on other grounds, 69 NY2d 791; cf Matter of Walsh v Kelly, AD3d, 912 NYS2d 406 [1^st Dept 2010] [as hearing before Civil Service Commission not mandated by law, proceeding improperly transferred to Appellate Division]).

"An objection in point of law . . . does not include a claim that the penalty imposed is excessive." ( Donofrio v City of Rochester, 144 AD2d 1027, 1028 [4^th Dept 1988] [supreme court improperly ruled on excessive penalty where substantial evidence question raised]; cf Hoch v New York State Dept. of Health, 1 AD3d 994 [4^th Dept 2003] [supreme court improperly ruled on whether award was arbitrary and capricious where substantial evidence question raised]; A F Gulf Serv., Inc., 260 AD2d 474 [2d Dept 1999] [appellate division does not have jurisdiction where excessive penalty, and not substantial evidence question, is raised]).

Here, all but three respondents allege as an affirmative defense that they are not proper parties to the action, and as this defense constitutes an objection based on a point of law and petitioner did not appear at oral argument, the action is dismissed as against them. And, as it is undisputed that petitioner was terminated following a hearing mandated by Civil Service Law § 75, and the remaining respondents are subject to petitioner's challenge to the sufficiency of the evidence supporting the administrative decision terminating him, it is hereby

ADJUDGED, that the petition is dismissed against respondents Raymond Kelly, as Police Commissioner of the New York City Police Department, the New York City Police Department, Detective Leonard Mastrogiacomo, New York City Department of Investigation, Rose Gill Hearn, as Commissioner of the New York City Department of Investigation, Lindsay Eason, as Sheriff of City of New York, New York City Sheriff's Department, Pri Con Investigations, Noel Bruen, New York City Office of Administrative Trial and Hearings, and Nancy Goodman, Finance Department Advocate; it is hereby

ORDERED, that, pursuant to CPLR 7804(g), the application by petitioner seeking to vacate and annul a determination by respondents City of New York, David Frankel, as Commissioner of the City of New York Department of Finance, and New York City Department of Finance is respectfully transferred to the Appellate Division, First Department, for disposition. This proceeding involves an issue as to whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction of law is, on the entire record, supported by substantial evidence (CPLR 7803); and it is hereby

ORDERED, that petitioner serve a copy of this order with notice of entry upon the County Clerk (Room 141B), who is directed to transfer the file to the Appellate Division, First Department.

This constitutes the decision, order, and judgment of the court.