Matter of Rutkunas v Stout

Matter of Rutkunas v Stout 2007 NY Slip Op 02593 [8 NY3d 897] March 27, 2007 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 16, 2007

[*1] In the Matter of Anthony Rutkunas, Respondent-Appellant,
v
Joseph Stout et al., Appellants-Respondents.

Decided March 27, 2007

Matter of Rutkunas v Stout, 31 AD3d 566, modified.

APPEARANCES OF COUNSEL

Charlene M. Indelicato, County Attorney, White Plains (Linda M. Trentacoste of counsel), for appellants-respondents.

James M. Rose, White Plains, for respondent-appellant.

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be modified, with costs to appellants-respondents, by dismissing the petition in its entirety and, as so modified, affirmed.

Petitioner's conduct jeopardized the health and safety of his coworkers and of the public patrons of the facility at which he worked. Accordingly, " 'we cannot conclude that the [*2]penalty of dismissal imposed . . . shocks the judicial conscience' " as a matter of law (Matter of Will v Frontier Cent. School Dist. Bd. of Educ., 97 NY2d 690, 691 [2002], quoting Matter of Kelly v Safir, 96 NY2d 32, 39-40 [2001]; see also Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 [1974]). The Appellate Division has no discretionary authority or interest of justice jurisdiction in this CPLR article 78 proceeding to review the penalty imposed by respondent Commissioner of the Westchester County Department of Parks, Recreation, and Conservation (see Matter of Kelly, 96 NY2d at 38). Moreover, petitioner failed to show that the Hearing Officer's recommendation was the result of any bias (see Matter of Warder v Board of Regents of Univ. of State of N.Y., 53 NY2d 186, 197 [1981]).

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), judgment modified, etc.