Matter of Ruben Olavarria v Kelly

Matter of Olavarria v Kelly 2007 NY Slip Op 01007 [37 AD3d 191] February 6, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

In the Matter of Ruben Olavarria, Petitioner,
v
Raymond W. Kelly, as Police Commissioner of the City of New York, et al., Respondents.

—[*1] Paul S. London, Bronx, for petitioner. Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for respondents.

Determination of respondent Commissioner, dated October 15, 2004, which dismissed petitioner from the Police Department, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Paul G. Feinman, J.], entered April 22, 2005) dismissed, without costs.

There was substantial evidence at the administrative hearing that over a period of 2½ years, while assigned to various commands, petitioner engaged in acts that included assault, insubordination, being discourteous to superior officers, violating an order of protection, and being asleep on duty. There is no basis for disturbing the credibility findings underlying these conclusions (see Matter of Berenhaus v Ward, 70 NY2d 436 [1987]). Under the circumstances, the penalty of dismissal does not shock the judicial conscience (see Matter of Harp v New York City Police Dept., 96 NY2d 892 [2001]). Concur—Tom, J.P., Friedman, Sullivan, Nardelli and Catterson, JJ.