Opinion
November 15, 1971
In a proceeding pursuant to article 78 of the CPLR to review the determination of the City Manager of Yonkers which found petitioner guilty of Specification 2 of Charge I, Specification 1 of Charge III, and Specification 1 of Charge IV; which found him not guilty of the remaining charges and specifications; and which dismissed him from his position of Sealer of Weights and Measures. Determination modified, on the law, by annulling so much of the determination as found petitioner guilty of Specification 2 of Charge I, by dismissing said Specification and by reducing the punishment to a period of suspension of 30 days and a $100 fine. As so modified, determination confirmed, without costs. In our opinion the determination of guilt as to Specification 2 of Charge I is not supported by substantial evidence. We agree with the finding of the trial commissioner that the proof as to that specification was inconclusive as to intent. The punishment of dismissal, when considered with respect to the remaining charges and specifications of which petitioner was found guilty, is unduly harsh and an abuse of discretion, and is modified accordingly. Hopkins, Acting P.J., Shapiro, Gulotta, Christ and Benjamin, JJ., concur.