Matter of Gustafson v Town of N. Castle, N.Y.

Matter of Gustafson v Town of N. Castle, N.Y. 2007 NY Slip Op 09228 [45 AD3d 766] November 20, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

In the Matter of Leo Gustafson, Petitioner,
v
Town of North Castle, New York, et al. Respondents.

—[*1] Lovett & Gould, LLP, White Plains, N.Y. (Jonathan Lovett and Drita Nicaj of counsel), for petitioner.

Littler Mendelson, P.C., New York, N.Y. (Bruce R. Millman and Lisa M. Brauner of counsel), for respondents.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Town of North Castle, New York, dated September 28, 2005, which confirmed the report and recommendation of a hearing officer finding the petitioner guilty of misconduct and dismissed him from his position as a building inspector with the Town of North Castle.

Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

The petitioner, an assistant building inspector, was assigned a town vehicle for the purpose of making field inspections in connection with his employment. On the basis of a global positioning system installed in that vehicle which transmitted information to the town's computer regarding the vehicle's location and movements, the respondent Town of North Castle, New York (hereinafter the respondent) found that the petitioner, inter alia, falsified town records as to his whereabouts.

Contrary to the petitioner's contention, the respondents' determination is supported by substantial evidence (see Matter of Berenhaus v Ward, 70 NY2d 436 [1987]; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]; Matter of Duda v Board of Educ. of Uniondale Union Free School Dist., 34 AD3d 580 [2006]; Matter of Maher v Cade, 15 AD3d 489 [2005]; Matter of Mann v [*2]Town of Monroe, 2 AD3d 527 [2003]; Matter of Whiting v Village of Old Brookville Police Dept., 220 AD2d 600 [1995]), and the penalty of dismissal was not so disproportionate to the offense as to be shocking to one's sense of fairness (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 [1974]; Matter of Maher v Cade, 15 AD3d 489 [2005]; Matter of Lassiter v County of Dutchess, 256 AD2d 578 [1998]; Matter of Whiting v Village of Old Brookville Police Dept., 220 AD2d 600 [1995]). Ritter, J.P., Krausman, Covello and Dickerson, JJ., concur.