Matter of Goris v Kelly

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Matter of Goris v Kelly 2014 NY Slip Op 31575(U) June 20, 2014 Sup Ct, New York County Docket Number: 101562/2013 Judge: Jr., Alexander W. Hunter Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] . SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Index Number: 101562/2013 PART-33 GORE, LUIS vs KELLY, RAYMOND W. INDEX NO. Sequence Number : 001 MOTION DATE ARTICLE 78 MOTION SEQ. NO. The following papers, numbered 1 to -, Notice of MotionlOrder to Show Cause Answering Affidavits - Exhibits were read on this motion Wfor -Affidavits -Exhibits INds). I No(s). INo(s). Replying Affidavits Upon the foregoing papers, it is ordered that tsmotion is h i . Dated: Jd@k i 43 -. . , c J.S.C. .- ALEXANDER W. HUNTER, JR. ..................................................................... P CASE DISPOSED 2. CHECK AS APPROPRIATE: ............. MOTION IS: 0 GRANTED 3. CHECK IF APPROPRIATE: ................................................ s m ORDER 0 NON-FINAL DISPOSITION 1. CHECK ONE: 0DO NOT POST D c GRANTED IN PART ] OTHER 0SUBMIT ORDER 0FIDUCIARY APPOtNTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK PART 33 COUNTY OF NEW YORK In the Matter of the Applications of LULS GORIS, Petitioner. INDEX NUMBER 10156212013 Motion Sequence 001 DECISION, ORDER & JUDGMENT For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. -against- RAYMOND W. KELLY, as Commissioner of the New York City Police Department, THE NEW YORK CITY POLICE DEPARTMENT, and THE CITY OF NEW YORK, UNFILED JUDGMENT This judgment has not been entered by the Countv Clerk Respondents. and notice of entry cannot be served &sed herein. To obtain entryt counsel or authorired representative must appear i person at the Judgment Clerk s Desk (Roorrs n 141B). ALEXANDER W. HUNTER, J.: Petitioner Luis Goris petitions this court for a judgment, pursuant to CPLR Article 78, annulling the determination by respondents Raymond W. Kelly, as Commissioner of the New York City Police Department, the New York City Police Department, and the City ofNew York to terminate his ernploynient as a School Safety Agent. Factual Background Petitioner was employed as a School Safety Agent by the New York City Police Department (NYPD) from August 3, 1998 until August 14, 2 103. In response to discipliiiary charges served on Noveniber 8, 2012 (Petition, exhibit A), petitioner stipulated, on January 7, School Safety Agents provide security and ensure the safety of students, faculty and visitors in New York City Public School buildings and surrounding premises. iittp://www.nypdrecr~iit.coiii/inside-nypdicivilian-o~~poi-ti~nities June 13, 20 14). (visited 1 [* 3] 20 13, to a disciplinary penalty of 30 days suspension without pay. forfeiture of 20 vacation dal s. and acceptance of a one-year dismissal probation period, coniinencing January 7. 20 13 (id.. exhibit B). Terms of conduct for petitioner s dismissal probation were given to him on Januarj 15, 20 13, including his understand[ing] that failure to comply with any of the terms of conduct may be grounds for my dismissal from the New York City Police Department. Id., exhibit C. Petitioner appeared for a hearing on July 17, 201 3, concerning his failure to provide documentation for sick leave. Id., exhibit D. On August 14, 2013, he was notified of his dismissal [als a result of your subsequent violation of the conditions set forth in that [January 7, 20131 agreement. Id., exhibit E. Discussion An article 78 proceeding may only ask whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode ofpenalty or discipline imposed. CPLR 7803 (3). Judicial review of a discretionary administrative deteriniliation is limited to deciding whether the agency s actions were arbitrary and capricious. The agency s determination must be upheld if the record shows a rational basis for it, even where the court might have reached a contrary result. Mcitter o j Kaplan v Bratton, 249 AD2d 199. 20 1 (1 st Dept 1998) (citation omitted): see also Matter o Chinese Stef& Workers Asm. v Burden, 88 f AD3d 425, 429 (1st Dept 201 l), affd 19 NY3d 922 (2012) ( It is not the role ofthe court to weigh the desirability of the proposed action or to choose among alternatives, resolve disagreements among experts, or to substitute its judgment for that of the agency ). Petitioner claims that he was terminated in bad faith and that NYPD failed to consider mitigating factors, resulting in a determination that was disproportionate to the charged 2 [* 4] misconduct. He states that the initial disciplinary charges lodged against him stemmed from one incident, where he was charged with using profanity and leaving his post for an hour. Petition. $I 18. His subsequent termination was based on a failure to provide documentation for sick leave, which he describes as conduct and allegations wholly unrelated to those for which he was initially disciplined. Id.,7 19. He argues that his termination was a total aberration from existing caselaw, which clearly demonstrates that termination is appropriate following a demonstrated failure or inability on the probationer s part to conform his or her conduct to that expected by the agency. Id., 7 20. Petitioner refers to several cases with a common thread of recidivist behavior or misconduct: Wulsh v New York Stute Thruwuy Auth. (24 AD3d 755, 756 [2d Dept 20051) (petitioner was charged with numerous disciplinary violations ); Mutter o j Nemlerson 1.1 C itj)of New York (12 AD3d 159, 159 [ 1st Dept 20041) (petitioner was verbally abusive and acted in a threatening manner toward his supervisor, . . . [with a] prior disciplinary record, which included a suspension for similarly abusive behavior and a warning that any future such conduct would result in disciplinary proceedings ); Mutter of W i l ~ o n Bratton (266 AD2d 140, 141 [ 1st Dept v 19991) ( petitioner was apparently late for duty at least 15 times in the last year of her probation and at least one hour late for an appointment with NYPD s psychologist); i l f d l e i . of Rodriguez 17 New Yurk City Tr. Auth (247 AD2d 250, 250 [ 1st Dept 19981) ( petitioner failed to report for duty as directed, failed to report his absence from duty, and submitted false reports in connection with such failures ). Petitioner contends that his behavior, by contrast, does not approach the behavior of those petitioners, who he believes were justifiably terminated. Petitioner maintains that it was bad faith to be treated as seriously as these others. when he simply was less o f a troublemaker. This 3 [* 5] is not a productive line ofreasoning. The court o ill not calibrate the relative degree of misconduct among the various identified petitioners. Significantly, the instant petitioner shares uith the others a breach 0 the 1 probation agreement free11 entered into after a disciplinary action. Petitioner also argues the discontinuity between his original offense. using profanity and leaving his post for an hour, and his termination for failure to document sick leave. He claims that, since one incident had no relation to the other, it is unfair to treat him as a serial offender. f with such a severe penalty. Mutter o Pell v Bourd of Educ of Union Free School Dist. No I of Towns of Scursdde & Mamnroneck, Westchester County, 34 NY2d 222, 233 (1 974) ( the test is whether such punishment is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one s sense of fairness ) (internal quotation marks and citation omitted). Respondents offer a more substantial record of misconduct by petitioner, on and off the job, than that described by petitioner. Verified answer, exhibit A. However, it is his termination for violation of the terms of conduct for his dismissal probation, based on disciplinary charges served on November 8, 2012, that is being challenged here. The court finds no reason to annul NYPD s determination in this matter. Petitioner s agreement with NYPD to accept dismissal probation did not distinguish among possible violations. Having accepted the burden of playing by the rules in order to retain his position, he cannot now ask the court to pick and choose among the rules that should be applied to him. Any attempt to diminish the seriousness of petitioner s admitted offenses may be met by a consideration of the vital public safety role inherent to petitioner s position. As Pell found, in every case there must be sensitive distinction among agencies based upon their responsibilities to the public. 34 NY2d at 241. The court will llot conduct a balancing act between misconduct and penalties when the responsible agency had a 4 [* 6] rational basis for its determination on a subject that affects the security and welfare of New York City school children. Finally, there is no e\ idence of bad faith in thc manner in ~ h i c l i respondents made their determination. The proceedings u ere conducted in a transparent fashion. with petitioner s compliance throughout. Accordingly, it is ADJUDGED that the Petition is denied and the proceeding is dismissed. DATED: .June c?( ,2014 ENTER: J.S.C. ALEXANDER W. HUNTER, JR. UNFILED JUDGMENT This judgment has not been entered by the County Clerk mot be sewed kmwj ttereon. To orzwmmG& repmwtative must alnpear in w=m at the 4 q m C W S Desk (Room 1413). 5

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