Opinion
February 26, 1982
Appeal from the Supreme Court, Oneida County, J. O'C. Conway, J.
Present — Dillon, P.J., Simons, Doerr, Moule and Schnepp, JJ.
Determination unanimously confirmed and petition dismissed, without costs. Memorandum: In this proceeding pursuant to CPLR article 78 to compel the reinstatement of petitioner to his position as map room supervisor for Oneida County, petitioner contends that his dismissal following a hearing held pursuant to section 75 Civ. Serv. of the Civil Service Law is not supported by substantial evidence and constitutes excessive punishment. The hearing officer found evidence to support 10 of the 16 charges of misconduct preferred against petitioner and recommended that petitioner be discharged. There is substantial evidence in the record to support these findings (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176), except those related to Charge No. 4 ("[w]hile you reported yourself for jury duty, you were not actually on jury duty"), Charge No. 6 ("[y]ou entered the County Building without permission during February and March of 1976, among other times") and Charge No. 14 ("[a]fter an attorney complained of your absence you visted [ sic] that attorney to complain to him for reporting you"). In particular, there is substantial evidence that petitioner disregarded repeated warnings by his supervisors not to engage in specific acts of misconduct and demonstrated a "persistent unwillingness to accept the directives of his superiors" ( Matter of Short v. Nassau County Civ. Serv. Comm., 45 N.Y.2d 721, 723). This conduct involves insubordination (see Matter of Di Vito v State of New York, Dept. of Labor, 48 N.Y.2d 761, 763; Matter of Griffin v. Thompson, 202 N.Y. 104, 113; Matter of Pilawa v. City of Utica, 76 A.D.2d 103, 108) which warrants the penalty of dismissal (see Matter of Short v. Nassau County Civ. Serv. Comm., supra, pp 722-723; Matter of Lucheso v. Dillon, 80 A.D.2d 988, 989). Consequently, the penalty of dismissal, in the circumstances of this case, is not "`so disproportionate to the offense * * * as to be shocking to one's sense of fairness.'" ( Matter of Pell v Board of Educ., 34 N.Y.2d 222, 233.) Petitioner's claim that his right to due process was violated by a biased hearing officer is without merit.