MATTER OF WHITTINGTON v. Porcari

35 N.Y.2d 839 (1974)

In the Matter of Donald Whittington, Respondent, v. James A. Porcari, Jr., Appellant.

Court of Appeals of the State of New York.

Submitted October 18, 1974.

Decided November 21, 1974.

John D. Doyle, Corporation Counsel (Brian J. Burroughs of counsel), for appellant.

Thomas W. O'Connell for respondent.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, RABIN and STEVENS concur in memorandum.

*840MEMORANDUM.

Judgment of the Appellate Division insofar as appealed from reversed, without costs, and the determination of the commissioner dismissing petitioner from his employment as a Property Conservation Inspector reinstated. The only issue tendered on the appeal is the appropriateness of the sanction imposed on the employee for proven dereliction in the performance of his duties. Although there is an oblique suggestion of malicious motivation and invidious discrimination in singling out petitioner for disciplinary proceedings, it is undisputed that there was substantial evidence of repeated instances of deliberate or irresponsible failures in petitioner's performance of his duties and his incompetence to fulfill them. Such misconduct and incompetence merited dismissal in the discretion of the commissioner. There was thus no abuse of discretion by the commissioner and therefore it was improper for the Appellate Division to substitute its judgment for his (Matter of Pell v. Board of Educ., 34 N Y 2d 222, especially 235, 237-239). Under the circumstances, petitioner's status as a veteran and 11 years' prior service were not mitigating factors sufficient to override the new commissioner's purported effort to improve the performance of his department.

Judgment reversed, etc.