Opinion
September 30, 1997
Appeal from Supreme Court, New York County [Richard Lowe, III, J.].
Substantial evidence supports respondent's findings that petitioner, who had been a licensed port watchman or pier guard for approximately 21 years without incident, on one occasion failed to wear a proper visor and badge and to carry a memo book, and on another occasion failed to inspect two containers "in a diligent, conscientious and careful manner". Goods were taken from one of the containers but, because petitioner was not charged as a participant in the theft, and in view of his prior unblemished record, we find that the penalty of revocation is excessive to the extent indicated ( cf., Matter of Tannenholz v Waterfront Commn., 36 A.D.2d 930, and 30 N.Y.2d 668; Matter of Sessa v. Waterfront Commn., 24 A.D.2d 450, affd 18 N.Y.2d 759; Matter of Matuszewski v. Waterfront Commn., 37 A.D.2d 820). Significantly, it appears that respondent rejected the Administrative Law Judge's recommendation of a three-month suspension based on its counsel's unchanged claims in his exception to this recommendation, made after the completion of the hearing and without opportunity given to petitioner to defend, that petitioner was involved in the theft.
Concur — Ellerin, J.P., Williams, Mazzarelli, Andrias and Colabella, JJ.