| Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME,AFL-CIO v New York State Unified Ct. Sys. |
| 2016 NY Slip Op 03326 [138 AD3d 1444] |
| April 29, 2016 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of Civil Service Employees Association,Local 1000, AFSCME, AFL-CIO et al., Petitioners, v New York State Unified CourtSystem, Respondent. |
Levene, Gouldin & Thompson, LLP, Binghamton (Margaret J. Fowler ofcounsel), for petitioners.
John W. McConnell, New York City (Pedro Morales of counsel), forrespondent.
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,Onondaga County [Hugh A. Gilbert, J.], entered Sept. 14, 2015) to review adetermination of respondent. The determination found petitioner Robert Stanek guilty ofdisciplinary charges of misconduct and imposed the penalties of a letter of reprimand, sixmonths' probation and the loss of five days' pay.
It is hereby ordered that the determination is unanimously confirmed without costsand the petition is dismissed.
Memorandum: Petitioners commenced this CPLR article 78 proceeding seeking toannul the determination, made after an administrative hearing conducted pursuant to acollective bargaining agreement, suspending Robert Stanek (petitioner) for five dayswithout pay from his employment as a court security officer, based on his violation ofseveral departmental regulations. He also was placed on probation for a period of sixmonths, and was issued a letter of reprimand. Initially, we note that Supreme Court erredin transferring the proceeding to this Court pursuant to CPLR 7804 (g) on the groundthat the petition raises a substantial evidence issue. "Respondent's determination was not'made as a result of a hearing held, and at which evidence was taken, pursuant todirection by law' (CPLR 7803 [4]). Rather, the determination was the result of a hearingconducted pursuant to the terms of the collective bargaining agreement" (Matter of Ridge Rd. Fire Dist. vSchiano, 41 AD3d 1219, 1220 [2007]; see Matter of Thompson v Jefferson County Sheriff John P.Burns, 118 AD3d 1276, 1276-1277 [2014]; see generally Matter of Colton vBerman, 21 NY2d 322, 329 [1967]). Nevertheless, in the interest of judicialeconomy, we will retain the matter and consider the petition (see e.g. Matter of W.K.J. YoungGroup v Zoning Bd. of Appeals of Vil. of Lancaster, 16 AD3d 1021, 1021[2005]; see also Matter of Marin v Benson, 131 AD2d 100, 103 [1987]).
Despite the fact that the petition raises a substantial evidence issue, our review of thisadministrative determination pursuant to CPLR 7803 (3) is limited to whether thedetermination was "affected by an error of law or was arbitrary and capricious or anabuse of discretion." A determination "is arbitrary and capricious when it is takenwithout sound basis in reason or regard to the facts . . . An agency'sdetermination is entitled to great deference . . . and, [i]f the [reviewing]court finds that the determination is supported by a rational basis, it must sustain thedetermination even if the court concludes that it would have reached a different resultthan the one reached by the agency" (Thompson, 118 AD3d at 1277 [internalquotation marks omitted]; seeMatter of Brockport Student Govt. v State Univ. of N.Y. at Brockport, 136 AD3d1418, 1420 [2016]). "Moreover, an administrative determination regardingdiscipline will be afforded heightened deference where a law enforcement agency suchas [the court security arm of [*2]respondent] isconcerned" (Matter of Fortune v State of N.Y., Div. of State Police, 293 AD2d154, 157 [2002]; see generallyMatter of Smeraldo v Rater, 55 AD3d 1298, 1299 [2008]). Here, petitioners donot contend that the determination is affected by an error of law and, viewing theadministrative record as a whole (see Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d494, 499 [2011]), we conclude that the determination is not arbitrary and capricious,or an abuse of discretion. There is evidence in the record that supports the determination,and that evidence was credited by the Hearing Officer and adopted by respondent in itsdetermination.
We reject petitioners' further contention that the penalties imposed constitute anabuse of discretion. It is well settled that "a penalty must be upheld unless it is 'sodisproportionate to the offense as to be shocking to one's sense of fairness,' thusconstituting an abuse of discretion as a matter of law" (Matter of Kelly v Safir, 96NY2d 32, 38 [2001], rearg denied 96 NY2d 854 [2001], quoting Matter ofPell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale &Mamaroneck, Westchester County, 34 NY2d 222, 237 [1974]). Based on, inter alia,the " 'higher standard of fitness and character [that] pertains to [law enforcement]officers' " (Matter ofBassett v Fenton, 68 AD3d 1385, 1387-1388 [2009]), coupled with petitioner'srefusal to accept any responsibility for his conduct, we conclude that the penaltiesimposed do not shock one's sense of fairness (see Matter of Franklin v D'Amico, 117 AD3d 1432, 1434[2014]; see generally Kelly, 96 NY2d at 38). Present—Smith, J.P.,DeJoseph, NeMoyer, Troutman and Scudder, JJ.