Matter of McDonald v Bratton

Matter of McDonald v Bratton 2015 NY Slip Op 04923 Decided on June 11, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 11, 2015
Mazzarelli, J.P., Sweeny, Gische, Clark, JJ.
15370 100247/14

[*1] In re Denise McDonald, Petitioner,

v

William J. Bratton, etc., et al., Respondents.

Law Office of Harry Kresky, New York (Harry Kresky of counsel), for petitioner.

Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for respondents.

Determination of respondents, dated November 21, 2013, dismissing petitioner from her position as a police officer, 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 [Cynthia S. Kern, J.], entered September 8, 2014) dismissed, without costs.

Substantial evidence supports the determination that petitioner disobeyed a lawful order of her supervisor and engaged in conduct prejudicial to the good order, efficiency or discipline of the police department (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights , 45 NY2d 176 [1978]). As the Deputy Commissioner of Trials found, petitioner failed to obey two orders directing her to go out on assignment and then, by her actions, challenged and threatened her supervisor.

The penalty is not so disproportionate as to shock the conscience (see Matter of Kelly v Safir , 96 NY2d 32 [2001]). Contrary to petitioner's apparent contention, respondents properly considered her prior disciplinary record in determining the penalty (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County , 34 NY2d 222, 340 [1974]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 11, 2015

CLERK