| Matter of Attard v Kampe |
| 2012 NY Slip Op 03636 [95 AD3d 1005] |
| May 8, 2012 |
| Appellate Division, Second Department |
| In the Matter of Cynthia Attard, Appellant, v Karl Kampeet al., Respondents. |
—[*1] John Ciampoli, County Attorney, Mineola, N.Y. (Robert F. Van Der Waag of counsel), forrespondents.
In a proceeding pursuant to CPLR article 78, in effect, to review a determination of theNassau County Civil Service Commission, dated August 11, 2010, which, without a hearing,revoked the petitioner's payroll certification and directed Lawrence Mulvey, Commissioner of theNassau County Police Department, to terminate the petitioner's employment as a police officerwith the Nassau County Police Department pursuant to Civil Service Law § 50 (4), theappeal is from a judgment of the Supreme Court, Nassau County (Parga, J.), entered February 9,2011, which denied the petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
The petitioner's employment as a police officer with the Nassau County Police Departmentwas terminated following an investigation which revealed that she directly or indirectly had anownership interest in the sale of alcoholic beverages, in violation of Alcoholic Beverage ControlLaw § 128, by reason of her 50% ownership in a beer distributorship which held a liquorlicense. Based upon its finding that the petitioner had intentionally made a false statement of amaterial fact which, if known prior to her appointment, would have warranted herdisqualification, the Nassau County Civil Service Commission revoked the petitioner's payrollcertification and directed the respondent Lawrence Mulvey, Commissioner of the Nassau CountyPolice Department, to terminate her employment pursuant to Civil Service Law § 50 (4).
Contrary to the petitioner's contention, her status as a permanent appointee in the competitiveclass of the classified civil service did not entitle her to a mandatory pretermination hearingunder Civil Service Law § 75 (1) (a), where the Nassau County Civil Service Commissionrelied upon Civil Service Law § 50 (4) in revoking her payroll certification and directingthe termination of her employment (see Matter of Mingo v Pirnie, 55 NY2d 1019 [1982],affg 78 AD2d 984 [1980]; Matter of McShane v City Civ. Serv. Commn. of City ofN.Y., 51 AD2d 521 [1976]; Matter of Canarelli v New York State Dept. of Civ.Serv., 44 AD2d 645 [1974]). Moreover, as evidenced by the petitioner's affidavit submittedin support of her petition, there were no disputed facts which would warrant a hearing in theinterest of justice (cf. Johnson v City of New York, 63 AD2d 886 [1978]). As thepetitioner was given a written statement of the reasons for her disqualification, and afforded anopportunity to [*2]make an explanation and submit facts inopposition (see Civil Service Law § 50 [4]), she was provided the appropriate dueprocess for the property interest involved (see Matter of Richie v Coughlin, 148 AD2d178, 182-183 [1989], cert denied 498 US 824 [1990]).
Moreover, although the Nassau County Police Department conducted an investigation intothe petitioner's affiliation with the beer distributorship, the Nassau County Civil ServiceCommission properly conducted its own investigation into the petitioner's preemploymentconduct, the results of which ultimately led to the termination of her employment pursuant toCivil Service Law § 50 (4) (cf. Matter of Martin v Board of Educ. of Yonkers CitySchool Dist., 215 AD2d 661 [1995]; Borges v McGuire, 107 AD2d 492 [1985]).
Under the circumstances presented, the penalty of the termination of the petitioner'semployment was not so disproportionate to the offense as to be shocking to one's sense offairness, "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]; Matter of Pell v Board of Educ. of Union FreeSchool Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d222 [1974]). Dillon, J.P., Eng, Belen and Sgroi, JJ., concur.