| Matter of Kelly v Scoppetta |
| 2008 NY Slip Op 08490 [56 AD3d 475] |
| November 5, 2008 |
| Appellate Division, Second Department |
| In the Matter of Thomas Kelly, Petitioner, v NicholasScoppetta et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and CherylPayer of counsel), for respondents.
Proceeding pursuant to CPLR article 78 to review a determination of the respondent FireCommissioner of the City of New York, dated January 2, 2007, which, after a hearing, affirmed adetermination of an administrative law judge dated June 9, 2006 that the petitioner was guilty ofthree charges of misconduct, and terminated his employment as a firefighter with the FireDepartment of the City of New York.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs.
The determination that the petitioner knowingly ingested cocaine while employed by the FireDepartment of the City of New York (hereinafter the Fire Department) is supported bysubstantial evidence and therefore may not be set aside (see CPLR 7803 [4]; Matterof McGovern v Safir, 266 AD2d 107 [1999]; Matter of Murolo v Safir, 246 AD2d653 [1998]). In light of the fact that the petitioner tested positive for cocaine during a drug testadministered by the Fire Department and subsequently, during an administrative hearing,admitted to using cocaine on several occasions while employed by the Fire Department, thepenalty of dismissal was not so disproportionate to the offenses as to be shocking to one's [*2]sense of fairness, despite evidence that the petitioner suffered fromposttraumatic stress disorder (see Trotta v Ward, 77 NY2d 827, 828 [1991]; Matter ofPell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,Westchester County, 34 NY2d 222 [1974]; Matter of Longo v Dolce, 192 AD2d 157,161 [1993]; see also Matter of Reinhardv City of New York, 34 AD3d 376, 378 [2006]).
The petitioner's remaining contention is without merit. Spolzino, J.P., Ritter, Santucci andCarni, JJ., concur.