| Matter of Ward v Juettner |
| 2009 NY Slip Op 04432 [63 AD3d 748] |
| June 2, 2009 |
| Appellate Division, Second Department |
| In the Matter of Erik Ward, Petitioner, v Diana Juettner etal., Respondents. |
—[*1] Vincent Toomey, Lake Success, N.Y., for respondents.
Proceeding pursuant to CPLR article 78 to review a determination of the Board of PoliceCommissioners of the Town of Greenburgh, dated February 16, 2007, made after a hearing,which found that the petitioner violated three Rules and Regulations of the Town of GreenburghPolice Department, and terminated his employment as a Police Officer with the Town ofGreenburgh Police Department.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs.
Following a disciplinary hearing, the petitioner was found guilty of violating three Rules andRegulations of the Town of Greenburgh Police Department (hereinafter the Department), in thathe failed to follow the guidelines relating to the treatment of confidential informants; he failed toreport matters of a police nature to his immediate supervisor; and he engaged in conduct thatbrought discredit upon the Department. As a result, he was terminated from his position as apolice officer.
In order to annul an administrative determination made after a hearing, a court mustconclude that the record lacks substantial evidence to support the determination (see Matterof Kelly v Safir, 96 NY2d 32, 38 [2001]; Matter of Pell v Board of Educ. of Union FreeSchool Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d222, 231 [1974]). A reviewing court "may not [*2]weigh theevidence or reject the choice made by [the administrative agency] where the evidence isconflicting and room for choice exists" (Matter of Berenhaus v Ward, 70 NY2d 436,443-444 [1987]; see Matter of Collins v Codd, 38 NY2d 269, 270-271 [1976]). In theinstant case, substantial evidence supported the determination of the Board of PoliceCommissioners of the Town of Greenburgh that the petitioner violated three Rules andRegulations of the Department (see 300 Gramatan Ave. Assoc. v State Div. of HumanRights, 45 NY2d 176, 179-180 [1978]; Matter of Duda v Board of Educ. of Uniondale Union Free School Dist.,34 AD3d 580, 581 [2006]; Madry v Veteran, 70 AD2d 930 [1979]).
Further, the penalty imposed was not so disproportionate to the offense as to be shocking toone's sense of fairness, "thus constituting an abuse of discretion as a matter of law" (Matter of Kreisler v New York City Tr.Auth., 2 NY3d 775, 776 [2004]; see Matter of Kelly v Safir, 96 NY2d at 38;Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale &Mamaroneck, Westchester County, 34 NY2d at 233; Matter of Gustafson v Town of N. Castle, N.Y., 45 AD3d 766, 767[2007]; Matter of Maher v Cade, 15AD3d 489, 490 [2005]; Madry v Veteran, 70 AD2d at 930-931). Rivera, J.P.,Spolzino, Angiolillo and Balkin, JJ., concur.