Opinion
February 21, 1980
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the Rensselaer County Commissioner of Health dismissing petitioner after a hearing pursuant to section 75 Civ. Serv. of the Civil Service Law. Petitioner, a senior stenographer in the Rensselaer County Department of Health, was dismissed upon findings that she had refused to perform certain stenographic duties. While it appears that the initial refusal was in anticipation of a future work assignment and was not a refusal of a present assignment, the element of misconduct is established by substantial evidence. The commissioner further considered the petitioner's equivocal response to questioning at the hearing as to whether or not she would in the future perform the duties if required, and based thereon the penalty of dismissal was imposed. Since the performance of all duties was essential to the employment, the penalty of dismissal is not such an abuse of discretion as to warrant modification by this court (Matter of Pell v. Board of Educ., 34 N.Y.2d 222). Determination confirmed, and petition dismissed, without costs. Mahoney, P.J., Sweeney, Staley, Jr., Casey and Herlihy, JJ., concur.