| Matter of Coleman v Town of Eastchester |
| 2010 NY Slip Op 01485 [70 AD3d 940] |
| February 16, 2010 |
| Appellate Division, Second Department |
| In the Matter of Russell Coleman, Petitioner/Plaintiff, and CivilService Employees Association, Local 860, Local 1000 AFSCME, AFL-CIO,Plaintiff, v Town of Eastchester et al.,Respondents/Defendants. |
—[*1] Vincent Toomey, Lake Success, N.Y. (Jaimee L. Pocchiari of counsel), forrespondents/defendants.
Hybrid proceeding pursuant to CPLR article 78 to review a determination of the Town ofEastchester and the Town Board of the Town of Eastchester dated June 3, 2008, which adoptedthe findings of an arbitrator, made after a hearing, that the petitioner/plaintiff was guilty of 18specifications of misconduct or insubordination, and terminated his employment as a parkgroundskeeper, and action, in effect, for a judgment declaring that the Town of Eastchester andthe Town Board of the Town of Eastchester violated a collective bargaining agreement theyentered into with the petitioner/plaintiff's union, which was transferred to this Court by order ofthe Supreme Court, Westchester County (R. Bellatoni, J.), entered January 15, 2009.
Ordered that the petition is granted to the extent that the determination with respect tospecifications 11 and 18 is annulled and those specifications are dismissed, the determination isotherwise confirmed, the petition is otherwise denied, without costs or disbursements, and thematter is remitted to the Supreme Court, Westchester County, for further proceedings on thecause of action for a judgment declaring that the Town of Eastchester and the Town Board of theTown of Eastchester violated a collective bargaining agreement, and the entry of an appropriatejudgment thereafter, inter alia, dismissing so much of the proceeding as sought to review thedetermination with respect to all specifications other than specifications 11 and 18.
"The review of an administrative decision made after an employee disciplinary hearing islimited to a consideration of whether the determination was supported by substantial evidence"(Matter of Shade v Mahon, 37 AD3d 611, 612 [2007]; see Matter of Pell v Board ofEduc. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, WestchesterCounty, 34 NY2d 222, 231 [1974]; Matter of Jones v Mahon, 11 AD3d 692, 693[2004]). We agree with the petitioner/plaintiff, Russell Coleman (hereinafter the petitioner), thatthe determination with respect to specification 11 was unsupported by substantial evidence thathe "repeatedly" engaged in the conduct alleged thereunder (see Matter of Levi v Lauro,58 AD3d 851, 853 [2009]). Additionally, specification 18 must be dismissed as duplicative ofother [*2]charges (id.). However, the determination withrespect to the remaining specifications was supported by substantial evidence (see 300Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-181 [1978]).
"An administrative penalty must be upheld unless it is so disproportionate to the offense. . . as to be shocking to one's sense of fairness, thus constituting an abuse ofdiscretion as a matter of law" (Matter of Kreisler v New York City Tr. Auth., 2 NY3d775, 776 [2004] [internal quotation marks omitted]). Here, in view of the repeated instances ofmisconduct and insubordination committed by the petitioner/plaintiff, and the serious nature ofthe acts, it cannot be concluded, "as a matter of law, that the penalty of [termination] shocks thejudicial conscience" (Matter of Kreisler v New York City Tr. Auth., 2 NY3d at 776;see Matter of Rutkunas v Stout, 8 NY3d 897, 898 [2007]; Matter of Kaufman vWells, 56 AD3d 674, 675 [2008], lv denied 13 NY3d 707 [2009]).
Since the petition/complaint also requested a declaratory judgment, relief for which atransfer to this Court is not authorized pursuant to CPLR 7804 (g) (see Matter of HuntingtonHills Assoc., LLC v Town of Huntington, 49 AD3d 647, 648 [2008]; Matter of Hermanv Incorporated Vil. of Tivoli, 45 AD3d 767, 769 [2007]), the matter must be remitted to theSupreme Court, Westchester County, for further proceedings on the cause of action seeking suchrelief, and the entry of an appropriate judgment thereafter, inter alia, dismissing so much of theproceeding as sought to review the challenged determination with respect to all specificationsother than specifications 11 and 18. Fisher, J.P., Florio, Belen and Austin, JJ., concur.