Matter of Rodriguez v City of New York

Matter of Rodriguez v City of New York 2010 NY Slip Op 02020 [71 AD3d 512] March 16, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

In the Matter of Robert Rodriguez, Appellant,
v
City of New York et al., Respondents.

—[*1] The Law Offices of Fausto E. Zapata, Jr., P.C., New York (Fausto E. Zapata, Jr. of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Andrew Shapiro of counsel), for respondents.

Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered January 29, 2009, which denied the petition to invalidate termination of employment and for immediate reinstatement, unanimously affirmed, without costs.

Judicial review of an administrative agency's penalty is limited to consideration of whether the measure or mode of discipline imposed constituted an abuse of discretion as a matter of law. The penalty must be upheld unless it is so disproportionate to the offense, in light of all of the circumstances, as to be shocking to one's sense of fairness (Matter of Kelly v Safir, 96 NY2d 32 [2001]).

Petitioner engaged in a pattern of falsifying medical notes relating to unexcused absences from work, and he failed to report his arrest on related charges. Notwithstanding his unblemished record over 26 years and his previous outstanding evaluations, we cannot say that the penalty imposed was disproportionate to the offense (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974]). The Commissioner's letter sufficiently cited the egregious nature of the offense as a ground for the termination. Concur—Friedman, J.P., Catterson, McGuire, Acosta and Renwick, JJ. [Prior Case History: 2009 NY Slip Op 30105(U).]