Opinion
2018–13663 Index No. 13767/12
02-23-2022
Mark DESTEFANO, plaintiff/petitioner, v. NASSAU BOCES BOARD OF COOPERATIVE EDUCATIONAL SERVICES, defendant/respondent.
Law Offices of Louis D. Stober, Jr., LLC, Mineola, NY, for plaintiff/petitioner. Ingerman Smith, LLP, Hauppauge, NY (David F. Kwee of counsel), for defendant/respondent.
Law Offices of Louis D. Stober, Jr., LLC, Mineola, NY, for plaintiff/petitioner.
Ingerman Smith, LLP, Hauppauge, NY (David F. Kwee of counsel), for defendant/respondent.
BETSY BARROS, J.P., ANGELA G. IANNACCI, CHERYL E. CHAMBERS, LINDA CHRISTOPHER, JJ.
DECISION & JUDGMENT Hybrid proceeding pursuant to CPLR article 78 to review a determination of the Board of Cooperative Educational Services of Nassau County dated July 5, 2012, adopting the findings of a hearing officer dated June 29, 2012, made after a hearing pursuant to Civil Service Law § 75, that the plaintiff/petitioner was guilty of incompetency and misconduct, and terminated the employment of the plaintiff/petitioner, and action, inter alia, pursuant to Civil Service Law § 75–b to reinstate the plaintiff/petitioner to his employment. ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
Mark Destefano was employed by the Board of Cooperative Educational Services of Nassau County (hereinafter BOCES) as a mechanic and was responsible for, among other things, performing preventive maintenance on buses owned by BOCES in preparation for Department of Transportation inspections. In a statement of charges dated July 7, 2011, BOCES charged Destefano with 22 charges involving incompetency and misconduct. After a hearing pursuant to Civil Service Law § 75, by report and recommendation dated June 29, 2012, a hearing officer found Destefano guilty of 20 charges and recommended the termination of his employment. On July 5, 2012, BOCES adopted the hearing officer's findings, and terminated Destefano's employment. Destefano subsequently commenced this hybrid proceeding pursuant to CPLR article 78 and action against BOCES alleging, inter alia, that BOCES's determination was not based on substantial evidence. In an order dated June 18, 2018, the Supreme Court transferred the CPLR article 78 proceeding to this Court pursuant to CPLR 7804(g).
"Substantial evidence ‘means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ " ( Matter of Velez–Santiago v. State Univ. of N.Y. at Stony Brook, 170 A.D.3d 1182, 1183, 98 N.Y.S.3d 77, quoting 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 ; see Matter of Haug v. State Univ. of N.Y. at Potsdam, 32 N.Y.3d 1044, 1046, 87 N.Y.S.3d 146, 112 N.E.3d 323 ). Here, contrary to Destefano's contention, BOCES's determination adopting the findings of the hearing officer that Destefano was guilty of misconduct and incompetence was supported by substantial evidence, and the penalty of termination of his employment was not so disproportionate to the offenses as to be shocking to one's sense of fairness (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, 356 N.Y.S.2d 833, 313 N.E.2d 321 ; Matter of Maher v. Cade, 15 A.D.3d 489, 790 N.Y.S.2d 499 ).
BOCES's remaining contentions are not properly before this Court.
BARROS, J.P., IANNACCI, CHAMBERS and CHRISTOPHER, JJ., concur.