Matter of Marcotte v Holahan

Matter of Marcotte v Holahan 2013 NY Slip Op 07363 Released on November 8, 2013 Appellate Division, Fourth 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.

Released on November 8, 2013
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.
1132 TP 13-00486

[*1]IN THE MATTER OF PAMELA MARCOTTE, PETITIONER,

v

PAUL HOLAHAN, COMMISSIONER OF ENVIRONMENTAL SERVICES AND CITY OF ROCHESTER, RESPONDENTS.


Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Monroe County [Evelyn Frazee, J.], entered March 18, 2013) to annul a determination finding petitioner guilty of specified acts of misconduct and imposing a penalty of demotion.


CHAMBERLAIN D'AMANDA OPPENHEIMER & GREENFIELD LLP, ROCHESTER (MATTHEW J. FUSCO OF COUNSEL), FOR PETITIONER.
ROBERT J. BERGIN, CORPORATION COUNSEL, ROCHESTER (YVETTE CHANCELLOR GREEN OF COUNSEL), FOR RESPONDENTS.


It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner, an employee of respondent City of Rochester, commenced this CPLR article 78 proceeding seeking to annul the determination finding her guilty of specified acts of misconduct and imposing a penalty of demotion. Contrary to petitioner's contention, the determination is supported by substantial evidence, i.e., "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180). Additionally, we conclude that the penalty of demotion "is not so disproportionate to the offense[s] as to be shocking to one's sense of fairness, and thus does not constitute an abuse of discretion as a matter of law" (Matter of Szczepaniak v City of Rochester, 101 AD3d 1620, 1621 [internal quotation marks omitted]).
Entered: November 8, 2013
Frances E. Cafarell
Clerk of the Court