Matter of Daveiga v City of New York

Matter of Daveiga v City of New York 2008 NY Slip Op 10222 [57 AD3d 451] December 30, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

In the Matter of Kymel Daveiga, Petitioner,
v
City of New York et al., Respondents.

—[*1] Meyer, Suozzi, English & Klein, P.C., New York (Joni H. Kletter of counsel), for petitioner.

Ricardo Elias Morales, New York (Samuel Veytsman of counsel), for New York City Housing Authority and Board of New York City Housing Authority, respondents.

Determination of respondent New York City Housing Authority, dated October 31, 2007, terminating petitioner's employment as supervisor of grounds, 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 [Carol R. Edmead, J.], entered March 6, 2008), dismissed, without costs.

The finding that petitioner violated respondent's policy, set forth in chapter I, rule XII, section C (21) of its personnel manual, prohibiting employees from "commit[ting] any . . . violation of the law either on or off duty or on or off the work site implicating their fitness or ability to perform their duties," is supported by substantial evidence (see Matter of Consolidated Edison Co. of N.Y. v New York State Div. of Human Rights, 77 NY2d 411, 417 [1991]), namely, petitioner's admission that he possessed marijuana with an intent to use it while on respondent's property. We reject petitioner's argument that this rule required respondent to show that his possession and intent to use marijuana resulted, or was likely to result, in a demonstrably deficient job performance. Under the rule, reasonably interpreted (see Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v State of N.Y. Div. of Hous. & Community Renewal, 46 AD3d 425, 429 [2007], appeal dismissed 10 NY3d 858 [2008]), it was enough to show that petitioner's possession and intent to use marijuana implicated his fitness, or suitability, for a supervisory position that is expected to promote respondent's efforts to provide a drug-free living environment for public housing residents, and its integrity in the eyes of other employees and residents. There is no evidence that, in reaching its determination, respondent, in violation of CPL 160.50, 170.56 (4) and Executive Law § 296 (16), relied on the sealed record of the criminal proceedings that were instituted against petitioner and dismissed. Having never [*2]requested the court's leave to conduct disclosure pursuant to CPLR 408, petitioner cannot complain on appeal that he was not granted such leave. We have considered and rejected petitioner's other arguments. Concur—Tom, J.P., Friedman, Gonzalez, McGuire and Acosta, JJ.