Matter of Carmen Murillo v Raymond W. Kelly

Matter of Murillo v Kelly 2005 NY Slip Op 04457 [19 AD3d 105] June 2, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 24, 2005

In the Matter of Carmen Murillo, Petitioner,
v
Raymond W. Kelly, as Police Commissioner of the City of New York, et al., Respondents.

—[*1]

Determination of respondent Police Commissioner, dated November 10, 2003, imposing a 22-day suspension without pay and the forfeiture of 20 vacation days, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Michael D. Stallman, J.], entered April 16, 2004) dismissed, without costs.

Substantial evidence supports respondent's finding that petitioner failed to comply with a lawful order to attempt firearm qualification. The record evidence shows that prior to the order's issuance a departmental physician reviewed the relevant medical information, including the letters of petitioner's doctor, and determined that petitioner was medically capable of attempting firearm qualification (see Matter of Rivera v Beekman, 86 AD2d 1 [1982]).

The penalty of suspension without pay for 22 days and forfeiture of 20 vacation days does not shock our sense of fairness (see Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]). Concur—Buckley, P.J., Tom, Mazzarelli, Ellerin and Gonzalez, JJ.