Opinion
October 6, 1989
Appeal from the Supreme Court, Erie County, Joslin, J.
Present — Dillon, P.J., Denman, Boomer, Green and Davis, JJ.
Determination unanimously confirmed and petition dismissed without costs. Memorandum: In this CPLR article 78 proceeding, petitioner seeks to set aside the determination made by respondent pursuant to section 75 Civ. Serv. of the Civil Service Law terminating petitioner's employment by the Buffalo Police Department.
Initially, we note that Special Term improperly transferred this proceeding to this court where no "substantial evidence" issue was raised by petitioner (see, CPLR 7804 [g]; Nassau Roofing Sheet Metal Co. v Facilities Dev. Corp., 131 A.D.2d 171, 174). Even though the proceeding was improperly transferred to us, we will nonetheless determine the issues presented (see, e.g., Matter of Gernatt Gravel Prods. v Town of Collins, 105 A.D.2d 1057, 1058).
The Commissioner properly initiated this disciplinary proceeding against petitioner pursuant to section 75 rather than under sections 72 Civ. Serv. and 73 Civ. Serv. of the Civil Service Law (see, e.g., Matter of Turner v Simpson, 60 N.Y.2d 959). The penalty imposed was not "'so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness'" (Matter of Pell v Board of Educ., 34 N.Y.2d 222, 233) in view of respondent's findings of misconduct and petitioner's lengthy disciplinary record. Petitioner's claim, raised for the first time on appeal, that he is entitled to a disability leave pursuant to the terms of the collective bargaining agreement between the City of Buffalo and the Police Benevolent Association is not properly before us (see, Tumolillo v Tumolillo, 51 N.Y.2d 790; Arvantides v Arvantides, 106 A.D.2d 853, mod 64 N.Y.2d 1033). Were we to address the issue, we would find it lacking in merit because section 75 Civ. Serv. of the Civil Service Law authorizes the dismissal of a public employee for misconduct.