Matter of Sica v Walker

Matter of Sica v Walker 2014 NY Slip Op 01763 Decided on March 19, 2014 Appellate Division, Second 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 March 19, 2014
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
L. PRISCILLA HALL
LEONARD B. AUSTIN
SANDRA L. SGROI, JJ.
2012-11330
(Index No. 12-03691)

[*1]In the Matter of Richard Sica,

v

Maureen Walker, etc., et al., respondents.




James M. Rose, Scarsdale, N.Y., for petitioner.
Nichelle A. Johnson, Corporation Counsel, Mount Vernon,
N.Y. (Hina Sherwani of counsel),
for respondents.


DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the Comptroller of the City of Mount Vernon, dated May 31, 2012, which, after a hearing pursuant to Civil Service Law § 75, found the petitioner guilty of two disciplinary charges and terminated his employment.

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

Pursuant to article 78 of the CPLR, judicial review of an administrative determination made after a hearing required by law at which evidence is taken is limited to consideration of whether that determination is supported by substantial evidence (see CPLR 7803[4]; Selby v Berlin, 107 AD3d 902). Substantial evidence has been defined as "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). Further, in reviewing the administrative determination, "[t]he court may not substitute its judgment for that of the [agency]" (Matter of Joralemon Realty NY, LLC v State of N.Y. Div. of Hous. & Community Renewal, 102 AD3d 965, 967 [internal quotation marks omitted). The determination under review was supported by substantial evidence.

Additionally, the imposed penalty of dismissal was not so disproportionate to the offense committed 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 and Mamaroneck, Westchester County, 34 NY2d 222).

The petitioner's remaining contentions are without merit.
DILLON, J.P., HALL, AUSTIN and SGROI, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court