Opinion
October 16, 1961
In a proceeding under article 78 of the Civil Practice Act: (a) to review and annul the determination of the respondent Civil Service Commission revoking its certification of eligibility of the petitioner for appointment as a patrolman in the Police Department of the City of White Plains, and directing the termination of his appointment as such; and (b) to review and annul the determination of the respondent Commissioner of Public Safety dismissing petitioner as such patrolman, petitioner appeals from an order of the Supreme Court, Westchester County, entered November 30, 1960, denying his application on the merits, dismissing his petition and sustaining the respective determinations of the respondents. Order affirmed, without costs. In substance, respondent Municipal Civil Service Commission found petitioner guilty of having committed fraud of a substantial nature by failing, upon his application for appointment, to reveal the details of his naval record and the fact that he had been arrested in Atlantic City, New Jersey. In our opinion, there was substantial evidence to justify respondents' determinations (cf. Matter of Miller v. Kling, 291 N.Y. 65, 69); and, upon the undisputed facts, there was no basis for a determination that respondents had acted arbitrarily or capriciously (cf. Matter of Snetlage v. O'Connell, 271 App. Div. 1015, affd. 297 N.Y. 707). Petitioner is in no position to urge that the chairman of the commission, who had personal knowledge of some of the facts involved in petitioner's defense to the charge that he had failed to disclose the full details of his naval record, should not have participated in the hearing before the commission, since petitioner raised no objection to such participation prior to or during the hearing. (Cf. People v. Dohring, 59 N.Y. 374, 378, 379.) Moreover, it is not disputed that the determinations under review were proper, in any event, if in fact petitioner had been arrested in Atlantic City for a violation of law other than a minor traffic violation, and if he had failed to disclose such arrest. It is not claimed that the chairman had any personal knowledge of the facts with respect to such arrest, or that on the undisputed facts the finding of guilt with respect to the concealment of such arrest was the result of bias, interest or prejudice on his part. Nolan, P.J., Beldock, Kleinfeld, Christ and Pette, JJ., concur. [ 29 Misc.2d 750.]