Opinion
No. 82 SSM 2.
Decided March 27, 2007.
CROSS APPEALS, by permission of the Court of Appeals, from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department, entered July 11, 2006, in a proceeding pursuant to CPLR article 78. The Appellate Division granted a petition, on the law and in the exercise of discretion, to review a determination of respondent Commissioner of the Westchester County Department of Parks, Recreation, and Conservation, which had adopted the Hearing Officer's recommendation, made after a hearing, finding the petitioner guilty of misconduct and terminating his employment as a Senior Maintenance Mechanic I, to the extent of annulling the penalty and remitting the matter to the Commissioner to impose a less severe penalty.
Matter of Rutkunas v Stout, 31 AD3d 566, modified.
Charlene M. Indelicato, County Attorney, White Plains ( Linda M. Trentacoste of counsel), for appellants-respondents.
James M. Rose, White Plains, for respondent-appellant.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
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 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, quoting Matter of Kelly v Safir, 96 NY2d 32, 39-40; 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). 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).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), judgment modified, etc.