Matter of O'Neill v Doherty

Matter of Matter of O'Neill v Doherty 2012 NY Slip Op 00653 Decided on January 31, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 31, 2012
Tom, J.P., Sweeny, DeGrasse, Abdus-Salaam, Manzanet-Daniels, JJ.
6663 101385/11

[*1]In re Brian O'Neill, Petitioner,

v

John Doherty, as Commissioner of The Department of Sanitation of the City of New York, Respondent.




Kirschner & Cohen, P.C., Great Neck (Steven B. Kirschner of
counsel), for petitioner.
Michael A. Cardozo, Corporation Counsel, New York (Julie
Steiner of counsel), for respondent.

Determination of respondent, dated October 12, 2010, which
terminated petitioner's employment as a sanitation worker, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Alice Schlesinger, J.], entered April 15, 2011), dismissed, without costs.

Respondent's finding that petitioner violated the rule against loading trade waste in excess of six bags without authorization is supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-181 [1978]). Petitioner and his partner matched the physical description of the sanitation workers a member of the public complained were picking up construction debris from a private house under renovation. It was also undisputed that petitioner and his partner were in the vicinity of the house at the time of the complaint, and when their truck was dumped, construction debris in violation of the trade-waste rule was found. Moreover, a deputy chief in the Department of Sanitation testified that carpet and tiles in the truck matched the distinctive pattern he saw in the garbage at the house.

The penalty imposed does not shock our sense of fairness. The record shows that [*2]petitioner was employed for less than three years at the time of the violation and he had multiple prior disciplinary infractions for misconduct (see Matter of Williams v Doherty, 13 AD3d 185 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 31, 2012

CLERK