Opinion
605 TP 22-00368
09-30-2022
In the Matter of Sergey GURIN, Petitioner, v. UTICA MUNICIPAL HOUSING AUTHORITY, Doing Business as People First, Respondent.
DAREN J. RYLEWICZ, CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., ALBANY (SCOTT LIEBERMAN OF COUNSEL), FOR PETITIONER. THE LAW FIRM OF FRANK W. MILLER, PLLC, EAST SYRACUSE (FRANK W. MILLER OF COUNSEL), FOR RESPONDENT.
DAREN J. RYLEWICZ, CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., ALBANY (SCOTT LIEBERMAN OF COUNSEL), FOR PETITIONER.
THE LAW FIRM OF FRANK W. MILLER, PLLC, EAST SYRACUSE (FRANK W. MILLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND NEMOYER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: In this CPLR article 78 proceeding, transferred to this Court pursuant to CPLR 7804 (g), petitioner seeks to annul a determination following a hearing pursuant to Civil Service Law § 75 that found him guilty of several disciplinary charges and terminated his employment as a maintenance mechanic in housing complexes operated by respondent. Initially, we note that petitioner challenges the procedures employed by respondent and the penalty imposed, but does not raise a substantial evidence issue, and thus Supreme Court erred in transferring the proceeding to this Court (see Matter of Fundergurg v. New York State Off. of Children & Family Servs. , 148 A.D.3d 1667, 1668, 49 N.Y.S.3d 594 [4th Dept. 2017] ; Matter of Lynch v. New York State Dept. of Motor Vehs. Appeals Bd. , 125 A.D.3d 1326, 1326-1327, 6 N.Y.S.3d 192 [4th Dept. 2015] ). Nevertheless, in the interest of judicial economy, we address the merits of petitioner's challenges (see Lynch , 125 A.D.3d at 1326, 6 N.Y.S.3d 192 ).
Petitioner first contends that respondent failed to make an informed decision based upon an independent appraisal of the evidence introduced at the hearing, and that respondent merely accepted the recommendation of its executive director. We conclude that there is no evidence in the record that supports those contentions and, "in the absence of a ‘clear’ revelation that the administrative body ‘made no independent appraisal and reached no independent conclusion,’ its decision will not be disturbed" ( Matter of Taub v. Pirnie , 3 N.Y.2d 188, 195, 165 N.Y.S.2d 1, 144 N.E.2d 3 [1957] ; see Matter of Farabell v. Town of Macedon , 62 A.D.3d 1246, 1248, 877 N.Y.S.2d 796 [4th Dept. 2009] ; see also Matter of Uncle Sam Garages, LLC v. Capital Dist. Transp. Auth. , 171 A.D.3d 1260, 1262, 97 N.Y.S.3d 776 [3d Dept. 2019], lv denied 33 N.Y.3d 912, 2019 WL 4200850 [2019] ).
With respect to petitioner's further contention that the penalty is so excessive that it shocks the conscience, it is well settled that our review of challenges to the penalty imposed by an administrative agency "is extremely limited" ( Matter of Oliver v. D'Amico , 151 A.D.3d 1614, 1618, 57 N.Y.S.3d 258 [4th Dept. 2017], lv denied 30 N.Y.3d 913, 2018 WL 943634 [2018], rearg denied 31 N.Y.3d 1066, 77 N.Y.S.3d 335, 101 N.E.3d 976 [2018] ). Even if we would have reached a different decision if called upon to determine the appropriate sanction in the first instance, we "do not have any ‘discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed’ " ( id. , quoting Matter of Kelly v. Safir , 96 N.Y.2d 32, 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280 [2001], rearg denied 96 N.Y.2d 854, 729 N.Y.S.2d 670, 754 N.E.2d 773 [2001] ; see Matter of Marentette v. City of Canandaigua , 159 A.D.3d 1410, 1412, 73 N.Y.S.3d 823 [4th Dept. 2018], lv denied 31 N.Y.3d 912, 2018 WL 3148932 [2018] ). Contrary to petitioner's contention, the penalty of termination imposed here is not " ‘so disproportionate to the offense as to be shocking to one's sense of fairness’ " ( Kelly , 96 N.Y.2d at 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280 ), and thus it does not constitute an abuse of discretion as a matter of law.