Matter of Tamsen v Village of Kenmore

Matter of Tamsen v Village of Kenmore 2016 NY Slip Op 00785 Decided on February 5, 2016 Appellate Division, Fourth 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 February 5, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.
1 TP 15-01229

[*1]IN THE MATTER OF JEFFREY TAMSEN, PETITIONER,

v

VILLAGE OF KENMORE, RESPONDENT.

W. JAMES SCHWAN, BUFFALO, FOR PETITIONER.

BOND, SCHOENECK & KING, PLLC, BUFFALO (MARK A. MOLDENHAUER OF COUNSEL), FOR RESPONDENT.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Erie County [James H. Dillon, J.], entered April 17, 2015) to review a determination of respondent. The determination terminated the employment of petitioner.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination finding him guilty of misconduct and terminating his employment as a firefighter. Contrary to petitioner's contention, we conclude that the determination is supported by substantial evidence, i.e., "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180; see CPLR 7803 [4]). We likewise reject petitioner's contention that the Hearing Officer erred in determining that he misrepresented the facts of the 911 call underlying this proceeding. Although petitioner presented evidence to the contrary, "[t]he Hearing Officer was entitled to weigh the parties' conflicting . . . evidence and to assess the credibility of witnesses, and [w]e may not weigh the evidence or reject [the Hearing Officer's] choice where the evidence is conflicting and room for a choice exists' " (Matter of Clouse v Allegany County, 46 AD3d 1381, 1382, quoting Matter of CUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d 69, 75; see Matter of Childs v City of Little Falls, 109 AD3d 1148, 1149). We further conclude that the penalty imposed is not " so disproportionate to the offense[s] as to be shocking to one's sense of fairness,' " and thus it does not constitute an abuse of discretion

(Matter of Kelly v Safir, 96 NY2d 32, 38, rearg denied 96 NY2d 854).

Entered: February 5, 2016

Frances E. Cafarell

Clerk of the Court