Opinion
February 18, 1971
Determination of the Commissioner of the Department of Marine and Aviation dated December 19, 1968, suspending petitioner for a period of six weeks without pay, unanimously modified, on the law and in the exercise of discretion, to the extent of annulling the six-week suspension and substituting therefor a provision reprimanding petitioner for his conduct and a warning as to any future actions of similar nature, and otherwise confirmed, without costs and without disbursements. We confirm the respondent's finding that petitioner "refused to obey [a] proper order of his duly authorized superior". However, in our opinion, under all the circumstances, a six-week suspension without pay was unduly excessive and disproportionate to the offense committed by petitioner. In the exercise of the power vested in this court (see Matter of Mitthauer v. Patterson, 8 N.Y.2d 37; Matter of Bovino v. Scott, 22 N.Y.2d 214; Matter of Handel v. Gabel, 22 A.D.2d 654, CPLR 7803, subd. 3), we conclude that the penalty should have been limited as indicated above.
Concur — Stevens, P.J., Capozzoli, McGivern, Markewich and Tilzer, JJ.