| Matter of Gustafson v Town of N. Castle, N.Y. |
| 2007 NY Slip Op 09228 [45 AD3d 766] |
| November 20, 2007 |
| Appellate Division, Second Department |
| In the Matter of Leo Gustafson, Petitioner, v Town ofNorth Castle, New York, et al. Respondents. |
—[*1] Littler Mendelson, P.C., New York, N.Y. (Bruce R. Millman and Lisa M. Brauner ofcounsel), for respondents.
Proceeding pursuant to CPLR article 78 to review a determination of the respondent Town ofNorth Castle, New York, dated September 28, 2005, which confirmed the report andrecommendation of a hearing officer finding the petitioner guilty of misconduct and dismissedhim from his position as a building inspector with the Town of North Castle.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs.
The petitioner, an assistant building inspector, was assigned a town vehicle for the purpose ofmaking field inspections in connection with his employment. On the basis of a global positioningsystem installed in that vehicle which transmitted information to the town's computer regardingthe vehicle's location and movements, the respondent Town of North Castle, New York(hereinafter the respondent) found that the petitioner, inter alia, falsified town records as to hiswhereabouts.
Contrary to the petitioner's contention, the respondents' determination is supported bysubstantial evidence (see Matter of Berenhaus v Ward, 70 NY2d 436 [1987]; 300Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]; Matter of Duda v Board of Educ. ofUniondale Union Free School Dist., 34 AD3d 580 [2006]; Matter of Maher v Cade, 15 AD3d489 [2005]; Matter of Mann v [*2]Town of Monroe, 2 AD3d 527 [2003]; Matter ofWhiting v Village of Old Brookville Police Dept., 220 AD2d 600 [1995]), and the penalty ofdismissal 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 NY2d 222 [1974]; Matter of Maher v Cade, 15 AD3d489 [2005]; Matter of Lassiter v County of Dutchess, 256 AD2d 578 [1998];Matter of Whiting v Village of Old Brookville Police Dept., 220 AD2d 600 [1995]).Ritter, J.P., Krausman, Covello and Dickerson, JJ., concur.