Opinion
02-22-2017
In the Matter of Robert MOSER, petitioner, v. Kate RAMKISSOON, etc., et al., respondents.
Jonathan Lovett, White Plains, NY, for petitioner. Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, Hopewell Junction, NY (Laura Wong–Pan of counsel), for respondents.
Jonathan Lovett, White Plains, NY, for petitioner.
Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, Hopewell Junction, NY (Laura Wong–Pan of counsel), for respondents.
Proceeding pursuant to CPLR article 78 to review a determination of the City of Middletown Public Safety Commission dated August 19, 2014, which, after a hearing, found the petitioner guilty of one charge of insubordination and disobedience of orders, and suspended him from his position of firefighter for 60 days without pay.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
"The standard of review in an administrative determination made after a trial-type hearing directed by law is limited to considering whether the determination was based on substantial evidence" (Matter of Bosch v. City of Middletown, N.Y., 127 A.D.3d 855, 855, 4 N.Y.S.3d 898 ; see Matter of Lahey v. Kelly, 71 N.Y.2d 135, 140, 524 N.Y.S.2d 30, 518 N.E.2d 924 ). "Substantial evidence ‘means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ " (Matter of Westbury Superstores, Ltd. v. State of N.Y. Dept. of Motor Vehicles, 144 A.D.3d 695, 696, 40 N.Y.S.3d 476, quoting 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 ). "A reviewing court ‘may not weigh the evidence or reject the choice made by [the administrative agency] where the evidence is conflicting and room for choice exists' " (Matter of Morales–Reyes v. Westchester County Dept. of Social Servs., 81 A.D.3d 831, 831, 916 N.Y.S.2d 819, quoting Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 444, 522 N.Y.S.2d 478, 517 N.E.2d 193 ). Here, substantial evidence supported the determination of the City of Middletown Public Safety Commission (hereinafter the Commission) that the petitioner committed an act of insubordination and disobedience of orders.
The Commission's imposition of a penalty of suspension from duty for 60 days without pay, in addition to a 30–day pre-hearing suspension which had been served by the petitioner, did not constitute an abuse of discretion as a matter of law. The penalty was not so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 223, 356 N.Y.S.2d 833, 313 N.E.2d 321 ; compare Matter of Paqua v. Village of Mamaroneck Fire Dept., 119 A.D.3d 588, 987 N.Y.S.2d 874, with Matter of Clifford v. Kelly, 58 A.D.3d 432, 870 N.Y.S.2d 317, and Matter of Nelson v. City of Buffalo Fire Dept., 254 A.D.2d 761, 678 N.Y.S.2d 209 ).
The petitioner failed to demonstrate that the respondent Joseph Masi, a member of the Commission, was biased against him or should otherwise have been disqualified from participating in the hearing (see Matter of 1616 Second Ave. Restaurant v. New York State Liq. Auth., 75 N.Y.2d 158, 161, 551 N.Y.S.2d 461, 550 N.E.2d 910 ; Matter of Harris v. Zoning Bd. of Appeals of Town of Carmel, 137 A.D.3d 1130, 1132, 27 N.Y.S.3d 660 ).
The petitioner's remaining contentions are either without merit or not properly before this Court (see Matter of Peckham v. Calogero, 12 N.Y.3d 424, 883 N.Y.S.2d 751, 911 N.E.2d 813 ; Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 730 N.Y.S.2d 783, 756 N.E.2d 71 ).
CHAMBERS, J.P., HALL, MILLER and CONNOLLY, JJ., concur.