Opinion
2012-08-1
In the Matter of Morris WARE, appellant, v. BOARD OF FIRE COMMISSIONERS OF the ROOSEVELT FIRE DISTRICT, et al., respondents.
Mitchell Dranow, Sea Cliff, N.Y., for appellant. Cooke & Clarke, Hempstead, N.Y. (Lance D. Clarke of counsel), for respondents.
Mitchell Dranow, Sea Cliff, N.Y., for appellant. Cooke & Clarke, Hempstead, N.Y. (Lance D. Clarke of counsel), for respondents.
*914Proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Fire Commissioners of the Roosevelt Fire District dated September 8, 2010, made after a hearing, which found the petitioner guilty of charges of insubordination and gross misconduct, and terminated his membership with the Roosevelt Fire Department.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
The determination that the petitioner was guilty of misconduct is supported by substantial evidence and, therefore, may not be set aside ( see Matter of Mooney v. Board of Fire Commrs. of Bethpage Fire Dist., 79 A.D.3d 941, 942, 912 N.Y.S.2d 885;Matter of Loscuito v. Scoppetta, 50 A.D.3d 905, 906, 854 N.Y.S.2d 667;Matter of Morris v. Calderone, 49 A.D.3d 741, 742, 854 N.Y.S.2d 189;Matter of Maher v. Cade, 15 A.D.3d 489, 790 N.Y.S.2d 499). Further, under the circumstances presented, the penalty of termination of the petitioner's membership in the Roosevelt Fire Department did not constitute an abuse of discretion as a matter of law, as it was not so disproportionate to the offense as to be shocking to one's sense of fairness ( see Matter of Martin v. Board of Trustees of the Vil. of Pelham Manor, 86 A.D.3d 645, 646, 927 N.Y.S.2d 599;Matter of Mooney v. Board of Fire Commrs. of Bethpage Fire Dist., 79 A.D.3d at 942, 912 N.Y.S.2d 885;Matter of Kurot v. East Rockaway Fire Dept., 61 A.D.3d 760, 761, 876 N.Y.S.2d 523;Matter of Morris v. Calderone, 49 A.D.3d at 742, 854 N.Y.S.2d 189;Matter of Maher v. Cade, 15 A.D.3d at 490, 790 N.Y.S.2d 499).
The petitioner's remaining contention is without merit.