Marohn v Waterfront Commn. of N.Y. Harbor

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Marohn v Waterfront Commn. of N.Y. Harbor 2011 NY Slip Op 32238(U) August 15, 2011 Supreme Court, New York County Docket Number: 116280/10 Judge: Eileen A. Rakower Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 811712011 [* 1] ., b i ,;. . . ,,,; , , ; . . . ,,;, , , : . . . . . . , . , ' I " ' PRES'ENT : " -. ,' ,-c , ,; < ; ~ ,,p*.u,. ; I,'.;, ;y ;. - PART Index Number : 116280/2010 MAROHN,ROY INDEX NO. vs MOTION DATE NY C WATE R F RONT CO r\/l M I SSI 0N MOTION SEQ. NO. Sequence N u m b e r : 001 ARTICLE 78 olfor - 8N ~ ( ~ ) . i Answering Affidavits - Exhibits - pdo(a). I , I 1 1f w s ) . Replying Affidavits R. I.CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... NIOT~DN IS; ................................................ l>.iACASE DISPOSED I 1 GRANTED I -1 SETTLE ORDER 1 DO NOT POST 7 __ ......... '~*;:,-I.DENIED i 1 NON-FINAL DISPOSITION I i GRANTED IN PART I.:] OTHER i j SUBMIT ORDER FIDUCIARY APPOINTMENT 1. .I REFEREIdCE c; [* 2] - a ga i 11 s t- W A l-EI2 12ONT c 0M M I S S O N OF NEW YOliK I+ 1 IARROR, Mot. Seq. Roy Marohn ( Petitioncr ) brings this special proceeding pursuant to C. PLR Article 78 lo claallengc the A L I ~ L I16,~ 2010 decision by the Waterfront S i C omiiiission of New York Harbor ( the C ommission ), iiiacle after : hcaring, I t o iL rcvoke Petitioner s 1-cgistration as a nminteiiance man. Iktitioncr states that lie has worked in the muintcnmce depnrtincnt at the Port Ncwark c otitainer l enninal ( PNC 1 ) since approximately July 20, 1989, whcn tic received a temporary I-egistration to work as a maintciiance iiia~ili-om the C ommission. l he Commission issued him a pcrmnncnt rcgistration on Octobei- 3 I , 199 1 . As a maintenance man, Petitioner s general duties and responsibilitics consisted or attending to garbagu, paint in g , w t:1d i ng , b 11 i 116,c I ear1i n g , and otlier gcncra 1 ma i 11 t enmce fiin ct i c) t i s . rn On July 30, 2009, the Coiiimjssion issued a Notice of7Hcaring to Petitioner advising him or chai-gcs a1 leging hat hc: 0 0 Itiappropriately and without consent grabbed the leg and touclied thc brwst of a I ciiialc coworkcr on May 17, 2007; willfiilly atteinpted to caiisc physical iii.jury to cowor1;er Gel-ard Jol-dun by threatening him with 3 15 w~-ench, caused property d;imag:c t o PNCT by and 1 [* 3] 0 hitting tlie door 01. thc t x u k room \I i t h h e wreiicli 011 October 3, 3007; and similnrly tlireatening Jordan with ;I 171:ic1~jaclitwo days later, on Octohcr 5, 2 0 07 ; coti1I 11itt cd frau (1, d cc ei t ;i I i d i i i i sr epre s e n t a1i on by fa i I i iig to cli s cl c)se 17 iis t clrug list: o n his 1989 application iljr inclusion i n the I.oiigsliorcn7aii s rcgi stcr; committed 1 i a ~ I ,deccit a i d niisreprcsuiitatioti iii a n intervicw with the C ominission on July 3 1 , 2008; arid iiscd cocaine 2-3 times a wcclk fioin 1980 thi-ough 2007. A hearing \vas co~iclucted on March 25 rind May I O , 20 10 bcforc Adminislralivc Law Judge M ichacl 1. Zidoiiilc ( A1 ,I Zidonilc ). Pctitioiier iiiitially pi-oceeded pro ,sc despite being advised that hc had the riglit to have a Iawycr at thc hearing. 1lowever, Peti tioncr subsequently obtained counsel during thc licaritig. Prior to the pt*csuntation of tlie Commission s case, Petitioner s attorney moved to e~cliide any ~ i s c tliu trailscripts fi-otii intcrviews of Petitioner under oath on July of .3 I arid October 7, 2008 because hc was not told that lic had the riglit io have an attorney preseri! at those inlcrvicws. A1 ,I Zidonik denied Petjtioner s moljon. The lirst witricss to tcstify cm bclialf of the Commission was Patricia Wilson. Wilson testified that she is a security officer at PNCT. She stated tliat, on May 17, 2007, while worlciiig her normal 4:00 to 12:OO shift, Petitioner caiiie into liur hootli with a red cup which contained wine. He sat down in a chair next to Wilson and attemptud to engagc her in conversation. At one point, Pctitioncr got oLit of the chair and he grabbed [Wilson s] thighs and lie bcnt down, ;is if to h i d u fi otii ti security patiul. Wilson testified tlwt Petitioner got back 1113 md sat in the chair, at which time Wilsoii adiiionishcd hiin for touching hcr lcgs. Wilson tesiiiied that about five to ten miiiutes later' Petitioner got up atid touched [her] 011 [her] breast. Al tet- Wilson yellcd at hiin, J eljtjoncr left tlie booth. Wilson kstilic-d thal a 1 no tiiiic did shc conscnt to m y Ihrm of touching by I%tilioncr. Shc rcportcd tlic incident to her supervisor, her iiriion, and the Port Authority Police Depai-tment. Gerard Jorclan was also called by thc C ommission as a wiiness. 3ordaii testified that lie is eniployed 11s : tcrininrd inaintcnrznuc forcinm at PNC T. Jordan I iesliiied ~liat,on C)ctobei- 3, 3007,a l k r hc told Pctitioiier to get back to \vorlc 3 [* 4] because his hreak was over, I etjtiontrr i~csponcled, fiick yourself, white niggcr. go Jol-chi testified that, later tlint day, Pctitioiicr appl-o;~checiJordtin in the lmxk room ancl threatened him with ti I 5-inch ~ ~ w n c l wwitig it at him aiicl ranting and i, raving. .lorclan testified that Pctitioiict. also said words to the trf f cct ol I 11 kill you aiicl yoiir eiitil-c h n i l y . A licr this exchange, Pctitioncr hit the break room door with the wrciicli, causing clmiagsc to the door. .lordan testi licd that, two clays latcr, on October S, 2007, Petitioner, while holding a blaclijrlck, told Jordan that lit: woiild liar111 Jordaii and his wife. Jordan also testjjicd that, subsequent to these altercations, Pctitioner has made consiclei+al3lestrides to straighten out some or the prol-,leiiis that hc had by attending rehab ami anger inaiiagcinent scssioiis. Jor+daiialso statcd that Pctitioncr showed I-criioi-se[or the incidents and that he Ibrgavc Petitioncr. Jordan liirtlier testi lied that Petitioner still works under liis supervision, has riot caused any problciiis since the October 2007 incidcnts, shows up to work on timc arid pei-Ibriiis in a satisfactory iimiricr. Pctitioncr also tcstiiicd on his own behalf l-Xc testjtjcd h t lie has attention deficit disoi-der and is bipolar. Petitioner stated that he was not treated for these conditions at thc time of tlic October 2007 incidents, but is tiow rcceiving the proper medic;itioii and medical trcatmcnt. I IC fLrrthcr testilicd that lie was going tlirough a difficult scparation li+oiiiliis wile a i d was in dccp debt. Petitioiier stated that lie ncver picked lip thc wrench with thc intention ol striking Jordan, or damaging propei-ty, and that he hit the door with thc wrench when he xciden~ally lr i p ped. S i in i 1ai-I y , with respect to the a11cged b I ack-jack i ncid ent , Petit i oiier stat es that thc object was in fact a drumstick with tape 011 it, and that he never had any iiitcntion of striking Jordan with it. W i ~ hrespect to Wilson s allcjiatiuns, Petitioner testified that lic initially came j r i t o her ofiics on May 13, 2007 to fix her air conditioncr. She asked him about putting bliiids up. Petitioner told her thal he could not put blinds up in her booth without aiitliorily ji.oiii PNC I . Petitioner testified h i t he returned two days later bccause Wilson aslced hiin LO take iiicasurcmciits so she could purchase her owti bliiids. Iie sat dowii and spoke with Wilson about blinds and redoing the floor. Petitioner tcstif ied that at no time did hc ever touch Wilson s thigh or bruast. Hc fiirlhcr tesli Iicd that he plcr~cl guilty to ;I disorderly pci-soti s offense in conncctioii with the iiicidcnt [bJecausc that s the cleal that [Wilson1 made. [* 5] On c rc) s s - e Y am i i i a t i 011, the C o 111111 i s s i o 11 q 11us t i 01ed Petit i 011 cr 011 11 i s 13r i o r I di*iig iisc, and his tcstiiiiony uiidcr oath in 311 interview with the C oiiiiiiissiuii, whei-eiii Pelitionci- ;idinittc cl to bc a rcg111x iiscr of cocaine at ~igc tilid that lie 35, i i s d cocaine twice n week. l ctitioiier tc\ti ficcl that, contrary to what he said at thc intcrvicw, hc did not use cocaiiic. ALJ Zidonil; issucd his Kepor-t and Kecoiiimend3tioii to the Coiiimissiori ( ICeport ) on Juiic 14, 20 1 0. I n his Iielmrt, ALJ Zidoiiik Ibiitid that the C ommission had proved ;111 of the allegations against Pctitioner by a preponderaiice of thc evidence. With respect 10 ch3rgcs that Petitionci- committed li-aud, cluccit a i d iiiisrepr~sciitationin h t h his application for. inclusion in the 1,oiigslioreiiiaii s register, and cluring his July 3 1, 2008 intcrvicw under oath, ALJ Zidoiiik refki-red t o thc transcript of his Octobcr- 7, 2008 interview under- oath, wliei-ein hc adinittcd to using cocaine wlieii he was 19, and bewmiiig a rcgular user from age 25 onward. Petitioner was 33 wlien lie applicd for rcgistration with the C oiiiiiiissjoii, and dcnicd having evcr used any rial-cotics. Siinilarly, at his J d y 3 I , 2008 intcrvicw, Petitioner dcriicd ever using any clrugs aside li-om smol;[iiig] a littlc ~nai-i~j~iana he was a teenagci-. when With respect to thc iiicident with Wilson, AI,J Zidonik found Wilson s tesiiiiiony t o be crdiblc, and discrcdited the tcstimoiiy of Petitioiier. ATJ Zidoni k further found Peti tioiler s testimony with respect to thc incidcnts with Joi-daii to be incrediblc, arid founcl that Jordan attempted to ininiiiiize the seriousncss of thc incident. IHaviiig f ound Petitioner to have eiigagcd in the conduct a1le@ by thc C 0111111s s i on, A L J Zidon i k reco iiiiii eii d cd tlia t Pet i 1i on e r s rcg i strati o 11 as a i maintenance iiiaii be revokud. On August 16, 20 10, thc Coiiiiiiission uiiaiiinmusly adopted A1,J Zidonik s Rcport and teriiiinated Petit ioticr s reg istrati 011, ? liis petition ens ~icd. 4 [* 6] I lei-e, the court t i i d s that thc C ommission s clecisioii to revoke Petitionar s 1 registration l i d ; I-alional basis. First, ALJ Ziclonilc properly considcrcd the Iuly 3 I and October 7, 2008 interview transcripts. Whilc Scctioii 1.20 of the K L I I ~iuicl S lie g 1 I at i oils c) f the W a t er fi-on t C c)i i i iii i s s i on pro v i d e that an em p 1oy ee slia 11 h av e 1 the right to be accomptiiiied and rcprcsciitccl by coLiiisel at an interview under oath, Pctitionci- mi cite to no regulation or statute which conI:rs iipon thc Coiiiinissioii a11 affirmative duty to advise thc intcrvicwcu of his or right to counsel prior to pi-oceeding. Mimndu wai*nings ... are groiiiided i i i the rights to reiiiain silent and to counscl undcr thc Fifth aiid Sixth Aincndmcnts, which only apply in the context 01 criminal proceedings ( I f 7 i + r I % ~ ~ L ~ L WW., 20 A.D.3d 600, 610- I 1 IC/ [3rd Dept. 200S1). U p o n consideration of the 2006: interview transcripts, it was rational for AIJJ Zidoni k to conclude that Petitiuner misrepresented his history ol drug abuse both in his 1989 applicdon, 11s well as in his July 3 I , 2008 interview. With respect to the May 17, 2007 incident with Wilson and the October 2007 incidents with Jorclan, 11ic1-cwas ample testiiiiony in the recoi-d Ibr AJ.,J Zidonil; to sustain all of the relatecl clixges against Pctitioncr. Tlicsc tlitidings were based upoii ALJ Ziclonik s detei-ininations of crcdibility, which are largely 70 unreviewable by the court (SCC ~ C I C ~ ~ / I C I I I , S TV~~l-d, N.Y .2d 436 11 O871). 17. L;istly, given the foi-egoiiig conduct, the court does not find the penalty of revocation to bc shocking to om s sctise of fairness. Wherel ore, it is hereby ADJULIGED that the Petition is dcnicd and the proceeding is dismissed. I hisconstitutes the dccisioti and order of the court. All other i-ulieI rccliicstcd is denied. [* 7] h*..*.. -, Dated: Aiigiist 15, 301 I q,y-,- --.A+ \ ---.-..A . . -. .... L11,EE.N A. RAKOWER, J.S.C. UNFILED JUDGMENT This judgmenl has not been entered by the County Clerk and notice of enlry cannul be served based hereon. To obtain enlry. c o i i n ~ e or authorized representalive must l appear in person at the Jodgmeril Clerk s Desk (Room 1418).

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