Matter of Mooney v Board of Fire Commr. of Bethpage Fire Dist.

Matter of Mooney v Board of Fire Commrs. of Bethpage Fire Dist. 2010 NY Slip Op 09369 [79 AD3d 941] December 17, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

In the Matter of Timothy Mooney, Petitioner,
v
Board of Fire Commissioners of Bethpage Fire District et al., Respondents.

—[*1] Thomas F. Liotti, Garden City, N.Y. (Edward A. Paltzik of counsel), for petitioner.

Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, N.Y. (Ingrid M. Rodriguez of counsel), for respondents.

Proceeding pursuant to CPLR article 78 to review a determination of the Board of Fire Commissioners of the Bethpage Fire District dated September 10, 2008, which adopted the findings and recommendations of a hearing officer dated April 18, 2008, made after a hearing, finding the petitioner guilty of misconduct, and terminated his membership in the Bethpage Fire Department.

Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

The determination that the petitioner was guilty of misconduct is supported by substantial evidence and, therefore, may not be set aside (see Matter of Loscuito v Scoppetta, 50 AD3d 905 [2008]; Matter of Morris v Calderone, 49 AD3d 741 [2008]; Matter of Maher v Cade, 15 AD3d 489 [2005]; Matter of Saccone v Garden City Park Water/Fire Dist., 13 AD3d 460 [2004]). Further, under the circumstances presented, the penalty of termination of the petitioner's membership in the Bethpage Fire Department did not constitute an abuse of discretion as a matter of law as it was not so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Gallagher v Jackson, 78 AD3d 833 [2d Dept 2010]; Matter of Kurot v East Rockaway Fire Dept., 61 AD3d 760 [2009]; Matter of Loscuito v Scoppetta, 50 AD3d 905 [2008]; Matter of Morris v Calderone, 49 AD3d 741 [2008]; Matter of Saccone v Garden City Park Water/Fire Dist., 13 AD3d 460 [2004]). Mastro, J.P., Fisher, Roman and Sgroi, JJ., concur.