Matter of Lundy v City of Oswego

2009 NY Slip Op 00772 [59 AD3d 954]

February 6, 2009

Appellate Division, Fourth Department

As corrected through Wednesday, April 1, 2009

In the Matter of George Lundy, Petitioner, v City of Oswego et al.,Respondents.

—[*1]D. Jeffrey Gosch, Syracuse, for petitioner.

Roemer Wallens & Mineaux LLP, Albany (Elayne G. Gold of counsel), forrespondents.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of theSupreme Court in the Fourth Judicial Department by order of the Supreme Court, OswegoCounty [Norman W. Seiter, Jr., J.], entered October 26, 2007) to review a determination ofrespondent Randolph Bateman, Mayor, City of Oswego. The determination terminatedpetitioner's employment with respondent City of Oswego.

It is hereby ordered that the determination is unanimously confirmed without costs and thepetition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, toannul the determination terminating his employment as Chief of Police for respondent City ofOswego following a hearing pursuant to Civil Service Law § 75. We conclude that thedetermination is supported by the requisite substantial evidence, i.e., "such relevant proof as areasonable mind may accept as adequate to support a conclusion or ultimate fact" (300Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]; seeCPLR 7803 [4]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Townsof Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974]), and wetherefore may not substitute our judgment for that of respondent Mayor (see generally Matter of Barhite v Villageof Medina, 23 AD3d 1114, 1115 [2005]). We further conclude that the penalty oftermination does not constitute an abuse of discretion as a matter of law, i.e., it is not " 'sodisproportionate to the offense as to be shocking to one's sense of fairness' " (Matter of Kellyv Safir, 96 NY2d 32, 38 [2001]; Matter of Smeraldo v Rater, 55 AD3d 1298, 1299 [2008]). " 'Apolice force is a quasi-military organization demanding strict discipline' " (Matter of Panek v Bennett, 38 AD3d1251, 1252 [2007]) and, "[i]n matters concerning police discipline, 'great leeway' must beaccorded to . . . determinations concerning the appropriate punishment"(Kelly, 96 NY2d at 38). Present—Martoche, J.P., Fahey, Green and Pine, JJ.