| Matter of Langler v County of Cayuga |
| 2009 NY Slip Op 09886 [68 AD3d 1775] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of James Langler, Petitioner, v County of Cayuga etal., Respondents. |
—[*1] Office of Matthew R. Fletcher, Cayuga (Randy J. Ray of counsel), for respondents.
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, CayugaCounty [William P. Polito, J.], entered July 31, 2008) to annul a determination of respondentCounty of Cayuga. The determination found petitioner guilty of disciplinary charges andterminated his employment as a lieutenant for the Cayuga County Sheriff's Department.
It is hereby ordered that the determination is unanimously modified on the law and thepetition is granted in part by annulling that part of the determination finding petitioner guilty ofcharge III and by vacating the penalty and as modified the determination is confirmed withoutcosts, and the matter is remitted to respondent County of Cayuga for further proceedings inaccordance with the following memorandum: Petitioner commenced this CPLR article 78proceeding seeking, inter alia, to annul the determination finding him guilty of disciplinarycharges and terminating his employment as a lieutenant for the Cayuga County Sheriff'sDepartment following a hearing pursuant to Civil Service Law § 75. We reject petitioner'scontention that charge II is time-barred pursuant to Civil Service Law § 75 (4). Themisconduct set forth in that charge "would, if proved in a court of appropriate jurisdiction,constitute a crime," and thus the charge is not subject to the limitations period set forth in section75 (4) (see Penal Law § 195.00 [1]). We reject petitioner's further contention thatthe misconduct set forth in charge V does not constitute one or more violations of Civil ServiceLaw § 107. Charge V alleges that the misconduct described in the first four chargesviolated Civil Service Law § 107, and we conclude that each of those charges sufficientlyalleges a violation of section 107 (4).
Judicial review of an administrative determination following a hearing required by law islimited to whether the determination is supported by substantial evidence (see CPLR7803 [4]; Matter of Guerrero vScoppetta, 53 AD3d 615 [2008]; Matter of D'Alessandro v West Hempstead Fire Dist., 53 AD3d576, 577 [2008]). Substantial evidence "means such relevant proof as a reasonable mindmay accept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc.v State Div. of Human Rights, 45 NY2d 176, 180 [1978]; see Matter of Lundy v City of Oswego,59 AD3d 954 [2009]). Here, we agree with petitioner that the determination with respect tocharge III, alleging that he altered a departmental shift schedule in retaliation for the support bymembers of that department for a political opponent of the incumbent sheriff, is not supported bysubstantial [*2]evidence, and we therefore modify thedetermination accordingly. There is no evidence in the record demonstrating that the schedulechange was motivated by a desire to retaliate for political reasons (see generally Matter of Barhite v Villageof Medina, 23 AD3d 1114, 1115 [2005]). We further conclude, however, that thedetermination with respect to charges I, II, IV and V is supported by substantial evidence.
Inasmuch as a single penalty was imposed and the record does not establish any relationbetween the charges and the penalty, we further modify the determination by vacating thepenalty. We remit the matter to respondent County of Cayuga for imposition of an appropriatepenalty on the remaining charges. Present—Hurlbutt, J.P., Smith, Fahey and Carni, JJ.