Matter of Bland v Kelly

Matter of Bland v Kelly 2008 NY Slip Op 08987 [56 AD3d 326] November 18, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

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

—[*1] Worth, Longworth & London, LLP, New York (Howard B. Sterinbach of counsel), for petitioner.

Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents.

Determination of respondent Police Commissioner, dated January 29, 2007, finding petitioner guilty of being absent from two assignments without permission or police necessity and imposing a 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 Supreme Court, New York County [Leland G. DeGrasse, J.], entered August 1, 2007), dismissed, without costs.

Substantial evidence, including petitioner's testimony admitting that she was absent from two overtime assignments, supports respondents' findings (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]). Although petitioner claims that she had the approval of her supervisor and the desk officer to be absent from one of the assignments due to a family emergency, this claim was denied by the desk officer, and petitioner failed to ensure that there was coverage for the high-security post.

The penalty of a forfeiture of 20 vacation days does not shock the conscience in light of petitioner's service record and her admitted absence from two overtime assignments (see e.g. Matter of Penney v Kelly, 16 AD3d 342 [2005]). Concur—Tom, J.P., Andrias, Friedman, Catterson and Acosta, JJ.